Wall v. State

• Decision Date: 07 July 1913
• Citation: 105 Miss. 543,62 So. 417
• Court: Mississippi Supreme Court
• Parties: F. V. WALL v. STATE

62 So. 417

105 Miss. 543

F. V. WALL v. STATE

Supreme Court of Mississippi

July 7, 1913

March 1913

APPEAL from the circuit court of Forest county, PAUL B. JOHNSON Judge.

F. V Wall was convicted of failing to perform his duty as an officer in the enforcement of the liquor laws, and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Currie & Smith and Currie & Currie, for appellant.

We submit that the court below erred in sustaining the state's demurrer to the defendant's special plea. It is apparent from this plea that the defendant was required by process of law to appear before the grand jury, and that he was questioned in detail with reference to the transaction which occurred at the home of Annie Craft, and as to whether or not Annie Craft sold any intoxicating liquors on that occasion to J. M. Swilley. This requirement was a violation of the constitutional rights of the defendant as it required him to give testimony which would reasonably and probably incriminate, or tend to incriminate him. As a general proposition an indictment or information will be quashed when it is based upon the testimony of the defendant which incriminates him, or tends to do so, or where the defendant is required to appear before a grand jury, or any other inquisitorial body, and to give testimony which would incriminate or tend to incriminate him in the violation of his legal rights. Century Digest, sec. 483; Decennial Digest, sec. 137; and annotations. However, we contend that the defendant is granted absolute immunity under section 1792 of the Code of 1908. This section prescribes that, "No person shall be excused from attending and testifying before a grand jury, or before any court, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of this chapter or any amendment thereof, on the ground and for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him, or to subject him to a penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, produce evidence, documentary or otherwise, before the grand jury or any court: Provided, no person so testifying shall be exempt from prosecution or punishment for perjury in so testifying." The special plea of the defendant shows clearly that the defendant was required to attend and testify before the grand jury prior to the finding of the indictment under which he was convicted, fully and completely about the details of the sale of the intoxicating liquor alleged in the indictment. The state's demurrer admits all the facts of the plea for the purpose of this argument. The statute permits a grand jury to inquire of any person with reference to any violation of the prohibition law; however, relieved him from prosecution or penalty on account of any "transaction, matter or thing, concerning which he may testify."

We submit that the special plea abundantly alleges that this defendant was compelled to testify with reference to the violation of the law on the part of Annie Craft as alleged in the indictment; that this is a matter about which he was required to testify and that such testimony will reasonably tend to criminate him. We contend that there is absolutely no limitation upon this statute, except its own proviso: "That no person so testifying shall be exempt from prosecution or punishment for perjury in so testifying."

We respectfully call the court's attention to the case of the State v. Bramlett, 47 So. 433. The motion of the defendant to quash the indictment in that case is very similar to the special plea of the defendant's in this case. This court held that the action of the trial court in...