Wyman v. De Gregory

• Decision Date: 31 December 1957
• Citation: 137 A.2d 512,101 N.H. 171
• Parties: Louis C. WYMAN, Attorney General, v. Hugo DE GREGORY.
• Court: New Hampshire Supreme Court

Page 512

137 A.2d 512

101 N.H. 171

Louis C. WYMAN, Attorney General, v. Hugo DE GREGORY.

Supreme Court of New Hampshire.

Argued Sept. 4, 1957.

Decided Dec. 18, 1957.

Rehearing Denied Dec. 31, 1957.

Louis C. Wyman, Atty. Gen., pro se.

James C. Cleveland, New London, for defendant.

LAMPRON, Justice.

Laws 1955, c. 312 provides for a grant of immunity to a witness summoned by the Attorney General in the course of the investigation of subversive activities as provided in Laws 1953, c. 307 as amended by Laws 1955, c. 197. It is intended to operate solely in conjunction with such investigation. Its use is therefore dependent on the constitutionality of that investigation. We have decided in Nelson v. Wyman, 99 N.H. 33, 36, 105 A.2d 756, that the Legislature had the power to order an investigation of subversive activities in our state. After the divided opinion of the Supreme Court of the United States in Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, we held that 'if state investigation of subversive activities is to be prohibited, a declaration to that effect must come from higher authority than this court.' Kahn v. Wyman, 100 N.H. 245, 246, 123 A.2d 166, 167. A careful examination of the opinions in Watkins v. United States, supra, and Sweezy v. State of New Hampshire, supra, reveals no such prohibition, Wyman v. Uphaus, N.H., 136 A.2d 221. See dissenting opinion of Justice Clark in the Sweezy case, supra; The Supreme Court Term, 1956, 71 Harv.L.Rev. 85, 141-146; McCloskey, Civil Liberties in 1956 Term, 54 Va.L.Rev. 803, 816-821. We therefore proceed to consider the constitutionality of said immunity statute. Laws 1955, c. 312.

Article 15, Part I of the Constitution of New Hampshire provides that 'no subject shall * * * be compelled to accuse or furnish evidence against himself' and the Fifth Amendment of the Federal Constitution provides that 'no person * * * shall be compelled in any criminal case to be a witness against himself.' Both of these provisions are designed to preserve the common-law privilege afforded a witness to refuse to answer any question which would incriminate him 'in other words, to give testimony which may possibly expose him to a criminal charge.' Ullmann v. United States, 350 U.S. 422, 431, 76 S.Ct. 497, 502, 100 L.Ed. 511.

These constitutional provisions protect the witness against the danger of criminal prosecution which might arise from enforced disclosures but not against disgrace, infamy or other consequences which might follow from his testimony. Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; Ullmann v. United States, supra. 8 Wig.Ev. (3d ed.) s. 2285, p. 327. See Nelson v. Wyman, 99 N.H. 33, 44, 105 A.2d 756; Annotation 100 L.Ed 535, 540. 'It follows therefore that if at the time of the claim of privilege, the liability of the witness to be convicted of the offense inquired about has been terminated, because of an acquittal, prior conviction, pardon or otherwise, the privilege does not exist for such conduct.' Wyman v. De Gregory, 100 N.H. 163, 165, 121 A.2d 805, 807; In re Pillo, 11 N.J. 8, 93 A.2d 176; Brown v. Walker, supra, 161 U.S. 598, 599, 16 S.Ct. 647. In other words these constitutional guaranties against self-incrimination do not give a witness an absolute right to silence. If the danger against which the privilege is intended to protect, namely, criminal prosecution, is removed by a statute so designed, the constitutional privileges against self-incrimination cease to apply and the witness cannot refuse to answer on that ground. Hale v. Henkel, 201 U.S. 43, 67, 26 S.Ct. 370, 50 L.Ed. 652; Wyman v. De Gregory, supra, 100 N.H. 165, 121 A.2d 807. See Annotation, 118 A.L.R. 602, 619, and 53 A.L.R.2d 1030.

The purpose of Laws 1955, c. 312, and of similar acts, commonly called immunity statutes, is to take away the criminality of the offense inquired about and thus 'remove those sanctions which generate the fear justifying invocation of the privilege.' Ullmann v. United States, supra. Immunity statutes, some of which have existed approximately a century, have constituted an integral and hitherto unquestioned part of our statutory law. RSA 7:27; 15:7; 68:9; 69:28; 149:17; 176:16; 282:9(O); 356:6; 365:16; 402:72; 405:23; 417:16; 589:6; 609:10. While these relate primarily to matters of state concern it is not unlikely that disclosures made thereunder might constitute the basis of a prosecution under federal law or under the law of another state.

The Fifth Amendment of the Federal Constitution does not in itself apply to a state matter such as is involved here and it is our opinion that it has not been made applicable by the Fourteenth Amendment. Brown v. Walker, supra, 161 U.S. 606, 16 S.Ct. 650; Jack v. State of Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234; In re Pillo, supra. See 70 Harv.L.Rev. 1454, 1463. As to the Fifteenth Article, pt. 1 of the New Hampshire Constitution, an immunity statute which protects a witness against criminal conviction in our State courts from disclosures which he may be compelled to make satisfies its requirements. 'Being no longer liable to prosecution, he is not compelled, by testifying, to accuse or furnish evidence against himself.' State v. Nowell, 58 N.H. 314, 315.

Our Legislature, however, cannot enact a law which can grant to a witness immunity from criminal prosecution in the other 47 states or in the federal courts as a result of forced disclosures made in a legislative investigation or other proceedings conducted in this State. Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; Dunham v. Ottinger, 243 N.Y. 423, 154 N.E. 298. It has been held in one case that the privilege against self-incrimination exonerates from disclosures whenever there is a probability of prosecution in a sister state or in a federal court. People v. Den Uyl, 318 Mich. 645, 29 N.W.2d 284, 2 A.L.R.2d 625. However the overwhelming majority of the decided cases has held that full and complete immunity against prosecution by the government compelling the witness to answer is equivalent to the protection furnished by the privilege against compulsory self-incrimination. United States v. Murdock, 284 U.S. 141, 149, 52 S.Ct. 63, 76 L.Ed. 210; Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; State of Vermont v. Wood, 99 Vt. 490, 134 A. 697, 48 A.L.R. 985; Cabot v. Corcoran, 332 Mass. 44, 123 N.E.2d 221; State of Ohio v. Morgan, 164 Ohio St. 529, 133 N.E.2d 104. See Annotation, 59 A.L.R. 895; 82 A.L.R. 1380; 38 A.L.R.2d 257, 267. These holdings are not in violation of the Fourteenth Amendment of the Federal Constitution. Jack v. State of Kansas, supra; Twining v. State of New Jersey, 211 U.S. 78, 93, 29 S.Ct. 14, 53 L.Ed. 97. See Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674; Palko v. State of Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct. 149, 82 L.Ed. 288.

We are in accord with the majority view and so decide. The privilege against self-incrimination with which we are concerned here is granted to the defendant by Article Fifteen, pt. 1 of the Constitution of New Hampshire. This privilege is necessarily limited to prosecutions in the courts of our state. 'The boundaries of our Constitution and our sovereignty are coextensive. A constitution is intended to protect the accused against the methods of its own jurisdiction and no other.' 8 Wig. (3d ed.) s. 2258, p. 338. Laws 1955 c. 312 protects the defendant against criminal convictions in our state courts from disclosures which he may be compelled to make thereunder. This protection is coextensive with the privilege invoked. Our Constitution cannot grant to the defendant a privilege against self-incrimination in a criminal proceeding in any of the other 47 states or in the federal courts. An immunity statute cannot be held invalid because it does no more. Cabot v. Corcoran, supra.

Laws 1955, c. 312 provides that 'No witness summoned * * * in the course of * * * the investigation of subversive activities * * * shall be excused from giving his testimony * * * upon the ground that such testimony * * * could tend to incriminate him provided that upon claim of privilege against self-incrimination, on relation of the attorney general, any justice of the superior court had adjudged the testimony of such witness * * * to be necessary in the public interest confirmed by such justice in a written communication to the witness.' The statute further provides that such disclosures shall not be used against the witness, as the subject of or as evidence in a criminal prosecution pertaining thereto.

Defendant argues that this statute is unconstitutional because it violates the doctrine of separation of powers. N.H.Const. Pt. 1, art. 37: U.S.Const. Arts. I, II, III. We fail to see how the doctrine of separation of powers under the Federal Constitution is involved if the statute complies with the provisions of our State Constitution in the matter. Leiter Minerals, Inc., v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267; Sweezy v. State of New Hampshire, supra, 77 S.Ct. 1214. It is also important to bear in mind in considering this argument the significant differences between the Federal and our State Constitution in their provisions granting power to the respective judiciaries as well as the historical beckground surrounding their adoptions.

Under Article III, section 2 of the United States Constitution 'The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties * * * to Controversies to which the United States shall be a Party * * *.' The result of the limitation is that the Court's only power is to decide lawsuits between adversary litigants with real interest at stake, and its only method of proceeding is by the conventional judicial as distinguished from legislative or administrative process. This...