People ex rel. Hackley v. Kelly — 24 How. Pr. 369

Majority

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COURT OF APPEALS.

The People ex rel. Andrew J. Hackley agt. John Kelly, Sheriff, &c.

Headnote

The first article, § 6 of the Constitution, which says, e< no person shall he compelled, in any criminal case, to be a witness against himself,33 does not protect a witness, in a criminal prosecution against another, from being compelled to give testimony which, disgraces him or tends to convict of a crime, if he has been protected by statute against the use of his testimony on a trial against himself.

December Term, 1861.

The relator was committed to prison by the court of general sessions of the peace of the city and county of New York, on the 23d of April, 1861, for a contempt of court in refusing to answer, before the grand jury then empanneled in that court in a matter pending before them against certain aldermen for feloniously receiving a gift of money to influence their votes in an official capacity, the following question, viz: “What did you do with the pile of bills received from Thomas Hope, and which he told you amounted to over $40,000 ? ” Hackley alleged, that when the interogatory was propounded, that any answer which he could give to that question would disgrace him, and would have a tendency to accuse him of a crime.

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He demurred to the question, referred to the common law rule that no man is held to accuse himself, and to the sixth section of the first article of the Constitution. The grand jury came into court before the recorder, where Hackley attended and made complaint of his contumacy. The court decided that the question was a legal and proper one, and that the reasons offered by Hackley were insufficient, and ordered him to answer it; he still' contumaciously refusing, the court adjudged him guilty of a criminal contempt, and committed him to prison in the county jail for thirty days. Hackley applied on habeas corpus to be discharged from custody. The general term of the supreme court decided that there was no evidence before them óf a want of jurisdiction or authority to pronounce the decision which the court of general sessions did pronounce, and there was no irregularity or defect on the face of the commitment. The writ of habeas corpus must be discharged, and the prisoner remanded to the custody of the sheriff. (See 21 How. Pr. R., 54.)

From this decision the relator appealed to this court.

James T. Brady and Amasa J. Parker, for appellant.

John H. Anthon, for respondent.

after reviewing the question and deciding that the contempt was committed in the presence of the Court, although the refusal to answer was before the grand jury, said: There seems, therefore, to be nothing to preclude us from examining the main question, whether the relator could lawfully refuse to answer the interrogatory put to him. The bribery act of 1853 declares the giving to or receiving money, &c., by any of divers public officers named, including,any member of the common council of a city, with a view to influence their action upon any matter which may come officially before them, an offence punishable by fine and imprisonment in a state prison. For the

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purpose of enabling the public to avail itself of the testimony of a participator in the offence, the fourteenth section provides as follows: “ Every person offending against either of the preceding sections of this article shall be a competent witness against any other person so offending, and may be compelled to appear and give evidence before any magistrate or grand jury or in any court, in the same manner as other persons; but the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying.’7 [CL, 539.) A similar provision is found in an act to amend the charter of the city of New York, passed in 1857. The fifty-second section relates to bribes of the members of the common council" and the officers of the corporation, making the giving and the receiving of bribes highly criminal, and concluding with an enactment substantially similar to the fourteenth section of the act of 1853. The design was to enable either party concerned in the commission of an offence against the act to be examined as a witness by the grand jury or public officer entrusted with the prosecution. The question to be determined is, whether these provisions are consistent with the true sense of the constitutional declaration, that no person shall be compelled, in any criminal case, to be a witness against himself. [Art. 1, § 6.)

The primary and most obvious sense of the mandate is, that a person prosecuted for a crime shall not be compelled to give evidence on behalf of the prosecution against himself in that case. It is argued that no such narrow and verbal construction could have been in the view of the authors of the article, for the reason that no such atrocious procedure, as that supposed, has been tolerated in civilized countries in modern times. But constitutional provisions are not leveled solely at the evils most current at the times in which they are adopted; but while embracing these, they look to the history of the abuses of political society in past times and in other countries, and endeavor to form a system

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which shall protect the members of the state against those acts of oppression and misgovernment which unrestrained political or judicial power are always and everywhere most apt to fall into. (See the observations of Chief Justice Spencer on this subject, reported in 18 Johns., 202 .) The history of England in early periods furnishes abundant instances of unjustifiable and cruel methods of extorting confessions; and the practice at this day in the criminal tribunals of the most polished countries in continental Europe, is to subject an accused person to a course of interrogatories which would be quite revolting to a mind accustomed only to the more humane system of English and American criminal law. It was not, therefore, unreasonable to guard by constitutional sanctions against a repetition of such practices in this state; and it is not at all improbable that the true intention of the provision in question corresponds with the natural construction of the language. But there is great force in the argument that constitutional provisions devised against governmental oppressions, and especially against such as may be exercised under pretence of judicial power, ought to be construed with the utmost liberality, and to be extended so as to accomplish the full object which the author apparently had in view, so far as it can be done consistently with any fair interpretation of the language employed. The mandate, that an accused person should not be compelled to give evidence against himself, would fail to secure the whole object intended, if a prosecutor might call an accomplice or confederate in a criminal offence, and afterwards use the evidence he might elicit to procure a conviction on the trial of an indictment against him. If obliged to testify on the trial of the co-offender to matters which would show his own complicity, it might be said upon a very liberal construction of the language, that he was compelled to give evidence against himself, that is, to give evidence .which might be used in a criminal case against himself. It is perfectly

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well settled, that when there is no legal provision to protect the witness against the reading of the testimony on his own trial, he cannot be compelled to answer. (The People agt. Mather, 4 Wend., 229 , and cases there referred to.) This course of adjudication does not result from any judicial construction of the constitution, but is a branch of the common law doctrine which excuses a person from giving testimony which will tend to disgrace him, to charge him with a penalty or forfeiture, or to convict him of a crime. It is, of course, competent for the legislature to change any doctrine of the common law; but I think they could not compel a witness to testify on the trial of another person to facts which would prove himself guilty of a crime without indemnifying him against the consequences, because I think, as has been mentioned, that by a legal construction, the constitution would be found to forbid it.

But it is proposed by the appellant’s counsel to push the construction of the constitution a step further. A person is not only not compellable to be a witness against himself in his own cause, or to testify to the truth in a prosecution against another person when the evidence given, if used as his admission, might tend to convict himself if he should be afterwards prosecuted; but he is still privileged from answering, though he is secured against his answers being repeated to his prejudice on another trial against himself. It is no doubt true that a precise account of the circumstances of a given crime would afford a prosecutor some facilities for fastening the guilt upon the actual offender, though he were permitted to prove such account upon the trial. The possession of the circumstances might point out to him sources of evidence which he would otherwise be ignorant of, and in this way the witness might be prejudiced. But neither the law nor the constitution is so sedulous to screen the guilty as the argument supposes. If a man cannot give evidence upon the trial of another person without disclosing circumstances which will make his

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own guilt apparent, or at least capable of proof, though his account of the transactions should never be used as evidence, it is the misfortune of his condition and not any want of humanity in' the law. If a witness objects to a question on the ground that an answer would criminate himself, he must allege, in substance, that his answer, if repeated as his admission on his own trial, would tend to prove him guilty of a criminal offence. If the case is so situated that a repetition of it on a prosecution against him is impossible, as when it is forbidden by a positive statute, I have seen no authority which holds or intimates that the witness is privileged. It is not within any reasonable construction of the language of the constitutional provision. The term “ criminal case,” used in the clause, must be allowed some meaning, and none can be conceived other than a prosecution for a criminal offence. But it must be a prosecution against him; for what is forbidden is, that he should be compelled to be a witness against himself. Now if he be prosecuted criminally touching the matter about which he has testified, upon the trial of another person, the statute makes it impossible that his testimony given on that occasion should be used by the prosecution on the trial. It cannot, therefore, be said, that in such criminal case he has been made a witness against himself by force of any compulsion used towards him to procure, in the other case, testimony which cannot possibly be used in the criminal case against himself. I conclude, therefore, that the relator was not protected by the constitution from answering before the grand jury.

A similar question has been before the former court of chancery and the late court of errors. By the usury act of 1837, it was made a criminal offence to take usurious interest, and by a provision of the same act, a plaintiff in an action at law, brought on a contract alleged to be usurious, might be examined by the defendant as a witness to prove •the usury; and the alleged usurer was likewise obliged to

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answer a bill of discovery on oath ; but it was provided that neither the testimony so given, nor the sworn answer of the defendant in chancery, should be used against the party who had so testified or answered, either before the grand jury or on the trial of an indictment. (Ch, 430.) In Perine agt. Striker, (7 Paige, 598,) the defendant had demurred to the plaintiff’s bill, which was filed to enjoin proceedings at law on a note alleged to be usurious, and which required a discovery of the usury by the defendant’s oath. The chancellor considered, the statutory provision that the answer should not be used against the party before the grand jury, or on the trial of an indictment against him, as an answer to the objection taken, on the ground now under consideration; but the case was decided against the plaintiff on another ground. The case of Henry agt. The Bank of Salina, ( 5 Hill, 323 ; S. C. in the supreme court, 1 id., 555,) approaches very near to a judgment of the court of errors upon the precise point. On the trial, the defendant •bad offered to call the real plaintiff to prove the usury in an action at law, pursuant to the act of 1837, though the plaintiff on the record was another person, who had no interest in the demand. The main question was, whether one for whose benefit the action was brought, but who was not the'plaintiff on the record, was within the scope of the statute. The supreme court held he was not; and hence, that not having the protection of the statute, he could not be compelled to prove himself guilty of a misdemeanor. The judgment, which was for the plaintiff, was reversed in the court of errors, where it was held that a plaintiff in interest was within the statute, and that the supreme court had committed an error in not compelling the plaintiff to be sworn. Such a decision of course assumed that the statute requiring the plaintiff to be sworn was constitutional, on the ground that it afforded a sufficient protection to the plaintiff, who was thus compelled to be a witness. This would be entirely conclusive upon the point now under

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discussion, but for the fact first mentioned by the chancellor, that the case did not disclose whether the usury, on account of which the defendant sought to avoid the note, had been actually taken, or only secured to be taken. If the latter was the case, he held that the usurer would not be indictable, as the section of the statute creating the criminal offence applied only to those who actually received "the usurious premium. No protection would be required iu such a case; at all events the constitution would not stand in the way. But the learned chancellor added: “ In the case now under consideration, I think the witness was compelled to testify, he being the real plaintiff, even if he had received a portion of the usurious premium, so as to subject him to indictment under the act of 1837 ; and provided he was not the real plaintiff, but a mere witness, he was bound to testify if he had made a usurious contract merely, without having actually received the usurious premium1” None of the other members of the court spoke particularly of the point now in question • but the case, if not a precise authority, shows at least considerable weight of judicial opinion in favor of the judgment of the supreme court in the present case. My conclusion is, that both, the judgments appealed from ought to be affirmed. All the judges concurring,

Judgment affirmed.^[1]

* Note.—It will be seen that the court of appeals take a more liberal view of the constitutional provision in question in this case, than the general term, of the supreme court. The latter court took the ground that this constitutional protection did not apply to a witness unless the prosecution was against himself. In other words it did not apply to a witness, but merely to a party defendant. The court of appeals, however, say: <e If (the witness is) obliged to testify on the trial of the co-offender to matters which would show his own complicity, it might be said, upon a very liberal construction of the language (of the Constitution), that he was compelled to give evidence against himself, that is, to give evidence which might be used in a criminal case against himself.55 Again, the court say: “The common law doctrine excuses a person from giving testimony which will tend to disgrace him; to charge him with a penalty or forfeiture, or to convict him of a crime. It is, of course, competent for the legislature to change ^ny doctrine of the common lawj but I think they could not'compela *377 witness to testify on the trial of another person to facts which would prove himself guilty of a crime, without indemnifying him against the consequences, because, 1 think, as has been mentioned, that by a legal construction, the constitution would be found to forbid it.” Why would the constitution forbid it? Evidently because the constitutional provision is declaratory of the rule of the common law in criminal cases. Therefore, the court hold, that any statute which would violate this rule, without indemnifying the witness against the consequences, would be unconstitutional. The violation of this constitutional rule by the legislature, then, is made to depend upon a cotí dition. If the condition is inserted at the time the statute is passed, which would otherwise violate the constitution, it is held to be no violation. Now, is there any provision in the constitution that its mandate for the protection of a witness shall not apply, if this or any other condition is inserted in a statute compelling the witness to testify against himself in a criminal case? Not any. Every witness, in a criminal case, by the common law, is excused from giving testimony which will tend to disgrace him, to charge him with a penalty or forfeiture, or to convict him of a crime; and by the decision of this court, this common law principle cannot be changed absolutely by the legislature without violating the same principle in the constitution. Now, in the passage of these bribery and other similar acts of the legislature, is not the common law rule as to witnesses as completely changed as though no indemnity to them for the consequences was inserted in the acts? The violation of the constitution consists in compelling a witness to give his testimony; the indemnity may not be sufficient to protect him from the "consequences of such violation. Take the question of disgrace, for instance: how is an exoneration from a criminal trial to restore the witness to the standing and favor he was in, before being compelled to testify? The simple question appears to be, has the legislature power to deliberately change the common law and violate the constitution as to the privilege of witnesses in criminal cases, by attempting to protect them from such violation ? If they can do so in one case, why can they not violate any constitutional provision, where personal rights are involved, by assuming to protect the subject from such violation? Rep.