Jennings v. State

CAMPBELL, C. J.

(dissenting). From the statement of the case in respondent’s brief, we gather that during the month of August, 1934, and for some time prior thereto, there was a disagreement and dispute between two groups of longshoremen in Portland, Oregon. The longshoremen of one group, the International Longshoremen’s Association, were hired from a “hiring hall” at Northwest Ninth Avenue and Everett street. The other group, the Columbia Bivermen’s Association, engaged a hall at Northeast Fourteenth Avenue and Alberta street at which it met and from where its members were hired. On the morning of August 20, 1934, between the hours of 7:30 o’clock and 9 o’clock, a. m., about 70 members of the Columbia Bivermen’s Association met at their hall, and, while there, a group of men from the International Longshoremen’s Association came to the hall and a riot immediately ensued. Bocks were thrown through the windows, and several shots were fired, some from without the hall, and some from within. The riot lasted but a short time and when it was over, one man was found inside the hall, shot to death. Just who fired the shot, or whether if was fired from within the hall or without the hall is in dispute.

There is evidence before us amply supporting this statement made by the learned district attorney.

A preliminary hearing was had before the municipal judge of the city of Portland sitting as a com

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mitting magistrate at which hearing Jennings and Abbott testified that they were at the hall at Northeast Fourteenth Avenue and Alberta street on the morning of August 20, 1934, at the time of the riot. The other two appellants made statements to the district attorney at that time to the same effect.

Thereafter an indictment was returned jointly charging 34 defendants with the crime of participating in a riot. These appellants were not indicted. Nor does it appear that any of those belonging to the Columbia Rivermen’s Association were included in this indictment. One of said defendants, Ed Shearer, demanded a separate trial, which request was granted. When the cause came on for trial, Arthur Rust, Paul Jennings, C. N. Abbott and Karl Tigert, the appellants herein, were called as witnesses for the state. Each testified that at the time of the riot they were members of the Columbia Rivermen’s Association.

Paul Jennings, during examination was asked the following question:

“Q. Now, during August, well, I will say the 20th of August last year, were you present out at the hall at 14th and Alberta, the morning — that is, the morning of August 20th, at approximately between 7:30 and 9 o’clock?”

The witness declined to answer the above question on the ground that the answer would tend to incriminate him.

The other three appellants were also called as witnesses for the state and were asked substantially the same question. They all declined to answer for the same reason. Their privilege of exemption was claimed with courtesy and respect to the court, and the only matter complained of is their refusal to answer the question.

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The court considered the matter at quite some length. The court in its order adjudging these appellants in contempt of court recited:

“* * * whereupon the undersigned judge of said court, having made an investigation of the facts and circumstances relative to whether the answer of said question .by the said witness would have a direct tendency to subject him to punishment for a felony, directed said witness to answer said question # * V’

The record of the aforementioned preliminary hearing consisting of nearly 2,000 pages of typewritten matter containing some testimony, many objections and much argument between counsel, was filed in this court. It was stipulated that it could be considered as part of the record in these contempt proceedings. The learned trial judge finally instructed appellants to answer the question, and on their refusal so to' do, adjudged each one of them in contempt of court, Froin that order, this appear is taken.

The question presented by this appeal is not' without its difficulties. It is a question that has been before the courts of this country and of England many times. The Constitution of the United States (Fifth Amendment to the Constitution of the United States) and that of every state in the Union, including this state, has a provision of similar effect which provides that no person shall, “* * * be compelled in any criminal prosecution to testify against himself. ’ ’: Constitution of. Oregon, Article 1, § 12. The question in this case appears to be one of original impression in this court.

While the provision of the Constitution of the United States is only binding on the United States courts, the reasoning and the logic of the eases which arose in those courts on this question are of great

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value in aiding us to reach a proper determination. The question first arose in the United States courts in the case of

United States v. Burr,

Coombs Trial of Aaron Burr, 67, Case No. 14692e

(In re Willie),

25 Fed. Cas. 38 . In that case a man by the name of Willie who was secretary to Burr, was called as a witness-. He was asked if he could explain a letter in cipher, alleged to have been in his handwriting and written by Aaron Burr. He refused to answer the question on the ground that it would tend to incriminate him. Counsel contended that the witness was the sole judge of answering or refusing to answer. It was pointed out by Chief Justice Marshall that there may be questions to which no “direct” answer would in any degree affect the witness and that there was no case that went so far as to say that the witness is not bound to answer such question. The opinion of the chief justice on that question announced the principles that the courts in the various states have since followed, the only difference being as to the facts in which the principles were applied. The opinion of the chief justice, in the Burr case, is in part as follows:

“When two principles come in conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent. The principle which entitles the United States to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded. * * * When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court can not participate with him

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in this judgment, because they can not decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims. It follows necessarily then, from this statement of things, that if the question be of such

a

description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact. * * *

“The gentlemen of the bar, will understand the rule laid down by the court to be this: It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such a case the witness must himself judge what his answer will be ; and if he say on oath that he can not answer without accusing himself, he can not be compelled to answer.”

The above doctrine has been applied in numerous cases, and summed up by the supreme court of Minnesota, speaking through Mr. Justice Mitchell in

State v. Thaden,

43 Minn. 253 ( 45 N. W. 447 ), as follows:

“While no principle of the common law is more firmly established than that which affords a witness the privilege of refusing to answer any question which will criminate himself, yet its application is attended with practical difficulties. To hold that the witness himself is the sole and absolute judge whether the answer will criminate him would be to place it in his power to withhold evidence whenever he saw fit. Such a rule could not be tolerated for a moment. On the other hand, to require him to state what answer he would have

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to give, or to explain fully how his answer would tend to criminate, would deprive him of the very protection which the law designs to afford. Moreover, the reason of the rule forbids that it should be limited to confessions of guilt, or statements which may be proved in subsequent prosecutions as admissions of facts sought to be established therein; but it should be extended to the disclosure of any fact which might constitute an essential link in a chain of evidence by which guilt might be established, although the fact alone would not indicate any crime. Hence the problem is how to administer the rule so as to afford full protection to the witness, and at the same time prevent simulated excuses. All the authorities agree to the general proposition that the statement of the witness that the answer will tend to criminate himself is not necessarily conclusive, but that this is a question which the court will determine from all the circumstances of the particular case, and the nature of the evidence which the witness is called upon to give. But the question on which the cases seem to differ is as to what we may call the burden of proof; some holding that the statement of the witness must be accepted as true, unless it affirmatively appears from the circumstances of the particular case that he is mistaken, or acts in bad faith, while other cases hold that, to entitle a witness to the privilege of silence, the court must be able to see, from the circumstances of the case and the nature of the evidence called for, that there is reasonable ground to apprehend danger to the witness, if he is compelled to answer. * * * The difference is theoretical, rather than practical; for it would be difficult to conceive of an instance where the circumstances of the case, and the nature of the evidence called for, would be entirely neutral in their probative force upon the question whether or not there was reasonable ground to apprehend that the answer might tend to criminate the witness. After consideration of the question and an examination of the authorities, our conclusion is that the best practical rule is that laid down in some of the English cases, and adopted and followed

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by Chief Justice Cockburn, in

Reg. v. Boyes,

[1 B. & S. 311, 30 L. J. Q. 301] * * * ‘that, to entitle a party called as a witness to the privilege of silence, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer’. To this we would add that, when such reasonable apprehension of danger appears, then, inasmuch as the witness alone knows the nature of the answer he would give, he alone must decide whether it would criminate him. This, we think, is substantially what Chief Justice Marshall meant by his statement of the rule in the Burr trial.”

Of this opinion, Dean Wigmore makes the following observation: “This summing-up of Mr. Justice Mitchell leaves nothing to be added, and ought to remain the last word in the development of the rule.” Wigmore on Evidence (2d Ed.), 892, § 2271.

In the instant case, there was a riot taking place at the Alberta street hall on the morning of August 20,1934, between 7:30 o ’clock and 9 o ’clock a. m. This in itself was a crime for which everyone unlawfully participating therein was subject to a criminal prosecution. During the riot a homicide was committed. The dead body was discovered within the hall. Shots were fired into and out of the building. No one knows who fired the shot that caused the homicide. The guilty person has never been discovered or apprehended. In order to convict one of a crime, two of the “necessary and essential” elements that must be proved by the state are the time and place of the crime charged, and in most cases, that the defendant was present at that time and place. The appellants admitted membership in that group of longshoremen who were within the hall at the time of the riot. If they should further

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admit that they were present at the time and place of the riot, it would certainly tend to establish these two essential elements of the crime, and that they were present when. and where the crime was committed. This would be true not only of the riot but of the homicide.

A highly interesting and instructive discussion of this entire question will be found in 19 Minn. Law Review 426, in an article entitled “Rules Governing the Allowance of the Privilege Against Self-Incrimination”, by Max P. Rapacz, Professor of Law, DePaw University College of Law.

Appellants had the right to claim the privilege.

It is also contended that because the appellants Jennings and Abbott testified at the preliminary hearing in the municipal court to the effect that they were present at the hall at the time of the riot, that they have thereby waived their privilege.

It is well settled that a person who has waived such privilege in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding.

“Nor did the fact that the petitioners testified before the grand jury constitute a waiver of their right to claim the privilege at the trial of the action. Overend v. Superior Court, 131 Cal. 280 ( 63 P. 372 ); In re Berman, supra.”

Ex parte Sales,

134 Cal. App. 54 ( 24 P. (2d) 916 ).

“The privilege not to give self-incriminating evidence, while absolute when claimed, may be waived by anyone entitled to invoke it. However, it is well settled that a person who has waived such privilege in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding, because the privilege attaches to the witness in each particular case in which he may be called on to

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testify, and whether or not he may claim it is to be determined without reference to what he said when testifying as a witness on some other trial, or on a former trial of the same ease and without reference to his declaration at some other time or place.” 28 R. C. L. 422. Also see Wigmore on Evidence, 2d Ed. 920, §2276 (4); and note in Ann. Cas. 1916C, 1012; also see note in 8 So. Cal. Law Review 51.

From the record presented in this court, we arrive at the conclusion that the circuit court erred in adjudging these appellants guilty of contempt.

The order should be set aside and the case remanded with instructions to release the appellants.

I dissent.

Bean, J., concurs.