# State v. Abdella

> West Virginia Supreme Court · March 9, 1954 · 139 W. Va. 428

URL: https://www.frixlaw.com/law-library/cases/8179995

## Case

- **Full name:** State of West Virginia v. Betrus M. Abdella
- **Court:** West Virginia Supreme Court
- **Decided:** March 9, 1954
- **Citations:** 139 W. Va. 428; 82 S.E.2d 913; 1954 W. Va. LEXIS 14
- **Precedential status:** Published
- **Opinion:** Dissent by Haymond
- **Judges:** Haymond, Riley
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8179995

## Opinion text

Haymond, Judge,
dissenting:
I agree, as the majority holds in the decision of this case, that the provisions of Section 2, Article 5, Chapter 57, Code, 1931, provide complete and absolute immunity from prosecution to a person who, by that statute, is compelled to give evidence which may criminate him or which tends to criminate him with respect to any offense other than a prosecution for perjury in the giving of such evidence; and that the immunity afforded by the statute must be coextensive with and as complete as the privilege provided by the Fifth Amendment to the Constitution of the United States and by Article III, Section 5, of the Constitution of West Virginia, that no person, in any criminal case, shall be compelled to be a witness against himself. I do, however, emphatically challenge the view of the majority that the prosecution of the defendant for the offense charged in the indictment in this proceeding is a prosecution for an offense as to which he was compelled to give evidence before the grand jury which returned the instant indictment against him.
As indicated in the majority opinion, the defendant was indicted for unlawfully, feloniously and knowingly using and permitting to be used a certain billiard room operated by him at No. 615 Avery Street, in Parkersburg, Wood County, West Virginia, “for ‘policy’ and ‘numbers’ playing, and for writing ‘numbers’; and delivering and receiving money and playing ‘policy’ and ‘numbers’, and aiding in the playing thereof, and delivering and receiving money for ‘numbers’, and for having in his possession *451 ‘numbers’.” He was not indicted for the offense of bribery or attempted bribery of any public official or any other person, or for any offense in connection with the payment of money for “protection” in the operation of his beer or pool room business, whether such operation was legal or illegal. As the majority opinion points out the investigation conducted by the grand jury which returned the foregoing indictment related to “gambling, illegal sale of whiskey, and other vices being carried on in Wood County.” Though special emphasis was laid upon or directed to gambling, the work of the grand jury was manifestly general in character and was devoted to “other vices” and “all phases of crime” which necessarily included crimes of any character. In short the work of the grand jury was devoted to the investigation of crime in general in Wood County and was not limited or confined to gambling offenses or offenses involving the illegal sale of whiskey.
The evidence of the defendant before the grand jury, as disclosed by the “Transcript” which is recognized by the majority as “a true, correct and complete transcript of the testimony” of the .defendant and Attorney Jacobs, consisted of negative replies by the defendant to questions which in effect accused him of paying for protection against violations of law in the operation of his business; and the majority opinion quotes the statements of the defendant to the grand jury which form the basis of his claim of immunity from prosecution under the instant indictment. Examination of these statements shows beyond question that they do not refer to any offense involving numbers or gambling in any form. They relate solely to the payment of money for protection for the defendant in the operation of his beer and pool room business. The questions propounded to him and his answers to them were general in character and they contained no reference whatsoever to gambling. The subject about which he was examined and concerning which he testified was equivocal and ambiguous. The only reasonable inference from his evidence is that he understood that the questions propounded to him insinuated that he had paid some *452 one for protection against some kind of criminal conduct in connection with his beer and pool room business; but the particular type of criminal conduct is- not mentioned in .any question propounded to him and is not specified or described anywhere in his evidence. The majority reaches the. unwarranted conclusion, which is not supported by any statement of the defendant, that the protection about which he was questioned, and which he denied he had paid for or obtained, related to gambling in some form in connection with his business. That conclusion is based on mere speculation and conjecture.
From any statements of the defendant, which do not mention gambling or numbers, it is just as reasonable to conclude that the protection about which he was questioned related to protection against the sale of whiskey, the operation of his pool room or his beer business without a license, the sale of beer to intoxicated persons or to persons under the age of eighteen years or during forbidden hours, or to larceny, embezzlement, or any other crime, as it is to conclude that it related to gambling or the use or the sale of numbers.
In its labored effort to justify its conclusion that the evidence of the defendant, by necessary implication, related to protection against gambling at his place of business, the majority, in its opinion, refers to the testimony of William L. Jacobs, the attorney for Mrs. Myrtis Smith whose husband lost money in a game of poker allegedly conducted at the establishment of the defendant. Shortly before the defendant testified, this witness told the grand jury that, when Mrs. Smith went to the place of business of the defendant to obtain from him a refund of the money lost by her husband, “numbers were being written in her presence.” The foregoing conclusion is wholly unwarranted and is completely refuted by the testimony of the defendant which is quoted in the majority opinion and which, as reference to the. quotation conclusively shows, contains not even a single.word about gambling in any ■form. The testimony given by Jacobs is of no importance or relevancy, .to the testimony of the defendant or the *453 question of his immunity from prosecution for the offense charged in the indictment. It does not appear, from anything disclosed by the record, that the defendant, when he testified, knew what Jacobs had told the grand jury; but even if the defendant knew every fact related by Jacobs, the testimony given by Jacobs was his own testimony, and the testimony of Jacobs can not, by any stretch of imagination, be considered as, or substituted for, the testimony of the defendant. The plain and incontrovertible fact is that the defendant did not testify about any offense involving gambling, or the use or the permission of numbers, by him at any time or place, directly or by implication, and that the only testimony which he was compelled to give, and did give, consisted of his denial that he had paid for protection in connection with the operation of his business. The only offense to which his testimony related was the crime of bribery in paying for protection against acts performed by him in connection with his business. He did not describe any such acts or in any way mention or disclose their character; and the nature of the acts, relating to the protection about which he was interrogated, not having been disclosed or described by the defendant or-by the prosecuting attorney or the juror who questioned him, is not revealed or made known by any statement of the defendant and, when viewed or considered by any utterance of the defendant, is and still remains a mystery which can not be solved by judicial speculation or conjecture. I assume that it will not be seriously asserted that if the defendant had committed murder, rape, larceny, embezzlement, or felonious assault, upon the premises used by him in the operation of his beer and pool room business, he would be accorded immunity from prosecution for any of those offenses by virtue of his testimony before the grand jury. It is just as logical, however, to extend immunity against prosecution for any of the above designated supposed offenses as it is to extend such immunity, as does the majority, to the defendant from prosecution for the offense charged in the indictment which was not even mentioned or referred to in his testimony.
*454 Of course the defendant could have been asked and required to answer whether he had paid for protection against gambling or the sale or the use of numbers at his place of business or in connection with its operation. Why he was not so interrogated is also a mystery, for he was compelled to appear, and did appear, before the grand •jury for that express purpose. But strange as it may seem, no question put to him mentioned or referred to gambling or the sale or the use of numbers, and no answer of the defendant mentioned or referred to either subject as his quoted testimony shows beyond any shadow of doubt. If he had admitted or denied that he had engaged in gambling or the sale or the use of numbers, he would have been clearly entitled, under the statute, to immunity from prosecution for the offense charged in the present indictment, or any indictment for any of those offenses. As he gave no such testimony, however, he is not entitled to immunity from prosecution for the offense charged in the instant indictment and I dissent from the holding of the majority which grants him such immunity.
As the defendant did not give compulsory testimony against himself within the meaning of Section 2, Article 5, Chapter 57, Code, 1931, and, for that reason, is not entitled to immunity from prosecution for the offense charged in the indictment; as he had a fair trial which was free from prejudicial error; and as the evidence establishes his guilt beyond reasonable doubt of the offense of which he was convicted, I would affirm the judgment of the Circuit Court of Wood County.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8179995. Public record. Not legal advice.