
    The People of the State of New York, Respondent, v. Joseph J. Cahill, Appellant.
    Second Department,
    May 12, 1908.
    Election Law — examination to discover illegal registration —witnesses — self-incriminating testimony — statute not unconstitutional — immunity against prosecution — section 41q of Penal Code construed — crime — perjury — evidence — admissibility of prior testimony.
    Section 7 of chapter 689 of' the Laws of 1905, providing that any person who shall refuse to obey the subpcena of the State Superintendent of Elections in metropolitan districts, or to testify under oath as to the genuineness of the residence of registered voters, is guilty of a misdemeanor, and, if he ^testify falsely, of a felony, is not unconstitutional as compelling one to be a witness against himself in a criminal case. This because, although the offense is made criminal, the right to refuse to answer, if the evidence may incriminate the witness, is not taken away by the statute.
    In a prosecution for perjury by giving false testimony in such proceeding, the defendant’s testimony is admissible against him and should not be excluded on the ground that he was illegally coerced to give the same by the pains and penalties of the statute.
    The privilege of refusing to answer on the ground that the witness may incriminate himself does not exist where there is a statute giving immunity from prosecution for any past crime which his testimony may disclose. Such immunity is given by section 41q of the Penal Code as to testimony given in proceedings to discover violations of the Election Law by illegal registration.
    Said section of the Penal Code will'not be construed so as to restrict the immunity to cases where testimony is given against another person, for immunity from prosecution for the derelictions of others is unnecessary.
    The immunity afforded by section 41 q of the Penal Code is not insufficient on the theory that the investigation may reveal the crime of illegal registration of which the witness may be guilty either as principal or accomplice. The principal object of immunity statutes is to give immunity to a witness against any crime that may be revealed by his testimony, in order that he may not shield himself behind his constitutional privilege, but may be compelled to testify.
    The immunity statutes protect from prosecution for past not future crimes, and, hence, if a witness examined testify falsely, his evidence is admissible against him.
    Even if it be conceded that section 41q of the Penal Code does not give a witness the immunity necessary in order to compel him to testify, his common-law right to refuse to answer upon the ground that his testimony may incriminate him is waived unless that privilege be claimed.
    
      An investigation before the State Superintendent of Elections in metropolitan districts to discover illegal registrations is not a criminal prosecution, but a mere examination before an administrative officer having no power to hold a witness for crime.
    Jenks and Miller, JJ., dissented, with opinion.
    Beargtoment of an appeal by the defendant, Joseph J. Cahill, from a judgment of the County Court of Kings county, rendered on the 8th day of December, 1905, convicting him of the crime of perjury.
    
      Martin W. Littleton and Luke O'Reilly [Jesse W. Tobey and Frederick Allis with him on the brief], for the appellant.
    
      James A. Donnelly [William Schuyler Jackson with him on the brief], for. the respondent.
   Gaynor, J.:

It is the duty of the state superintendent of elections to superintend the registration of voters, and investigate all matters relating thereto, in the metropolitan elections district (Laws of 1905, ch. 689). For the purpose of such investigation he is empowered to visit and inspect any house, hotel or building, and to interrogate the owner, keeper, landlord or any inmate thereof as to any person or persons residing or claiming to reside therein or thereat ” (sec. 6) ; and for that purpose to issue subpoenas in his name and returnable before him or one of his deputies appointed for that purpose for examination on any matter within his jurisdiction ; and it is provided that any person who shall refuse to obey such a subpoena or to testify on oath under it is guilty of a misdemeanor, or who shall testify falsely on such an examination is guilty of a felony (sec. 1). The defendant being so subpoenaed and examined before a deputy commissioner has been indicted and convicted of testifying falsely on such examination. He was examined in respect of whether he and two other men resided in the house from which they all registered in the borough • of Brooklyn, that being the matter under investigation. He was lessee of the ground floor of the said house and the next floor above, and kept a saloon on the ground floor. The residence of his wife and family was-in another election district in the said borough. He testified o.n the examination that the said other two men had regularly slept and resided in the room over his saloon the requisite statutory time for registration therefrom, and that he lived there. The indictment accuses him of testifying falsely in respect of the residence of both himself and the other two men, but the learned trial Judge in his charge to the jury confined the case to whether the defendant had testified falsely in respect of the latter.

1. It is contended that the said section 7 is unconstitutional and void for compelling persons to testify against themselves in violation of our constitutional prohibition,state and national, that “Ho person shall * * * be compelled in any criminal case to be a witness against himsel" This contention arises out of an obvious misconception. By making it a criminal offense for a person subpoenaed to refuse to appear and testify, the statute does not take away his constitutional privilege to refuse to answer if to do so might tend to incriminate him. All witnesses subpoenaed to court are under some similiar compulsion, but that does not deprive them of their constitutional privilege. Indeed, it is only to witnesses who are being required to testify that the privilege belongs.

2. It is contended that it was error to allow what the defendant testified to on his examination before the deputy commissioner to be proved on the trial, on the ground that he was illegally coerced by the pains and penalties of the statute to give such testimony, and that therefore to use it on his trial was to make him witness against himself in violation of the said constitutional prohibition ; as is the familiar every day rule in respect of all confessions or statements, oral or written, extorted from persons accused of crime by illegal duress of police officers, magistrates or others. As it was necessary in order to prove the charge contained in the indictment to prove what the defendant testified to before the deputy commissioner, as a preliminary to proving that it was false, the objection, stated in other words and in its full significance, is that a charge of perjury cannot be based upon the falsity of the defendant’s testimony before the deputy commissioner for the reason that he was illegally compelled by the statute to give it; for if the giving of the alleged false testimony cannot be proved it follows that a charge of perjury cannot be based upon it.

This all rests on whether the defendant was illegally coerced to testify before the deputy commissioner — that" is to say, notwithstanding and in violation of his said constitutional privilege — and that, it is plain, must be answered in the negative. The privilege to refuse to answer on the ground that his answers might tend to incriminate him did not exist in respect of the defendant’s examination before the deputy commissioner, for the reason that there was a statute giving him immunity from prosecution for any past crime which his testimony might disclose or lead to, viz., section 41q of the Penal Code. The object of the constitutional privilege is to protect the witness from the danger of prosecution for a past crime committed by him which his evidence may disclose or give a clue to, but when there is a pardon, or a statute of limitation, or of immunity, which removes that danger, the constitutional privilege cannot be invoked for there is nothing for it to apply to, i. e., no danger to protect the witness against (Counselman v. Hitchcock, 142 U. S. 547; People ex rel. Taylor v. Forbes, 143 N. Y. 219; Matter of Leich, 31 Misc. Rep. 671; People ex rel. Lewisohn v. General Sessions, 96 App. Div. 201; affd., 179 N. Y. 594). The crime in respect of which it is claimed that the defendant was compelled to witness against himself before the deputy commissioner is that of unlawful registration, which is defined in section 41a of the Penal Code. Section 41q provides that a person so offending “ is a competent witness against another person so offending ”, and that he may be compelled to attend and testify on any trial, hearing or proceeding or investigation in the same manner as any other person ”, and that “ The testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person testifying ”, ancl that “ Any such person testifying shall not thereafter be liable to indictment, prosecution or punishment for the offense with reference to which his testimony was given, and may plead or prove the giving of testimony accordingly, in bar of such an indictment or prosecution”. In the case of People v. Sharp (107 N. Y. 427) it was held that section 79 of the Penal Code, which is in the same words in these respects as section 41q, gave complete immunity.

The suggestion is made that literally this only gives the witness immunity against his testimony against another person so offending ”, and the crime it discloses against snch other person, and not against its disclosures against himself. It would be quite too much to try to read a statute intended to give immunity to witnesses as giving them immunity against something that they need no immunity against; i. e., the derelictions of others, instead of against their own derelictions.

3. The contention that the immunity did not protect the defendant for the reason that the investigation might reveal a crime of illegal registration of which the defendant was guilty, either as a principal or as an accomplice, must be deemed singular. That construction of immunity statutes would nullify their purpose, for they apply mainly to witnesses whose examination will show them to be thus implicated, instead of guilty of some crime foreign to the subject matter of the investigation. The principal object of immunity statutes is to give immunity to witnesses called in an investigation against any crime that may be revealed thereby, so that they may not shield themselves behind constitutional privilege, but may be required to testify, to the end that the investigation may be carried on.

4. It would be a still stranger notion that because the defendant was under legal compulsion to testify before the deputy commissioner by reason of the immunity statute, he was free to testify falsely without being amenable to the penalties of perjury, which would be the case if the evidence he gave could not be given in evidence in a criminal prosecution of him for perjury in the giving of it. Out of abundance of caution it is provided by the Penal Code that snch evidence may be proved in such a prosecution (sec. 712); but it must be manifest that the immunity is only given for past crimes, not for future ones. It could not be for perjury committed in the examination ; nor can it be construed that the general words of the immunity statute that the evidence shall not thereafter be used against the witness in any prosecution, has reference to crimes he may afterwards commit. It lias reference only to past crimes by him which his testimony might disclose or lead to the discovery of.

5. If it were conceded that section 41q did not.give the defendant the required immunity to make the giving of his testimony compulsory, as is contended, then his common law rights ruled, and he had the right to claim his privilege, for it existed, whereas it could not exist if immunity existed ; and not having done so he waived it (Burrell v. Montana, 194 U. S. 572; In Re Knickerbocker Steamboat Co., 139 Fed. Rep. 713; In Re Consolidated Rendering Co., 80 Vt. 55; 66 Atl. Rep. 790; 1 Greenl. Ev. § 451; 3 Wigmore Ev. §§ 2268, 2281; 5 id. § 2281a). It is sought to avoid this conclusion by claiming that the investigation before the deputy commissioner was a criminal proceeding against the defendant, and that therefore it was illegal for the deputy commissioner to call him as a witness at all, which would make it unlawful to use the evidence thus got from him in any criminal prosecution against him. It suffices that there was no criminal prosecution or examination against the defendant or any one else before the deputy-commissioner. He had no power to hold one. He was an administrative officer, and the investigation he is empowered to make is solely for the purpose of superintending registration, and enabling the registration lists to be properly made up, scrutinized and revised. Too much is made of the fact that the deputy commissioner seemed to testify on the trial that he entitled the affidavit he had the defendant sign (and which is the evidence given by the defendant before him) “ The People against Joseph J. Cahill, Case Ho. 354”. It matters not how he entitled it; he could not make a criminal proceeding of his investigation by any title; but as matter of fact the affidavit is not so entitled, as appears by reference to it in evidence. Moreover, such a title is common to civil as well as to criminal proceedings.

The evidence against the defendant was ample.

The judgment should be affirmed.

Hooker and Rich, JJ., concurred; Jenks, J., read for reversal, with whom Miller, J., concurred.

Jenks, J. (dissenting):

I dissent. I think that this judgment should be reversed because the court admitted against the defendant, and under his objections and exceptions, his sworn statement or affidavit made before the Deputy State Superintendent of Elections. I think that such ruling was error because this statement was obtained in violation of the defendant’s constitutional and statutory right not to be compelled in a criminal case to be a witness against himself. If the affidavit read in evidence came into existence in violation of such rights, then I think it was not evidence. Wigmore on Evidence (§ 2183) lays down the rule: “ Self-criminating documents, or other evidence, obtained from an accused person may be excluded, not because of the illegal nature of the search or other act by which they were obtained, but because the privilege against self-crimination involves their exclusion (post, § 2264)..” (See, too, State v. Squires, 1 Tyler [Vt.], 147.) The feature in this case "is, as I have said, that this affidavit, insisted upon as evidence, came into existence in violation of the defendant’s rights. The distinction is indicated in People v. Adams (176 N. Y. 351, 359). The court in that case would not notice the means whereby the books and papers were obtained, saying: “ The defendant was not sworn as a witness, nor was he required to produce any books or papers.” In accord is S. C., sub nom. Adams v. New York (192 U. S. 597, 598). The defendant was entitled to assert his privilege, “ if the evidence or his examination as a witness would either tend to incriminate him or disclose a link in the chain of testimony which might convict him of crime.” (People v. Priori, 164 N. Y. 466.)

The question is not affected by the fact that the State Superintendent of Elections is generically an administrative officer, or that the inquiry hereafter mentioned was in the interest of a proper registration. Both the Superintendent and his duly authorized deputies are by the statute clothed with extraordinary powers of visitation, inspection and interrogation. There is also the power to issue subpoenas in the name of the State Superintendent to investigate any matter within his jurisdiction. Disobedience to a subpoena is a misdemeanor, and refusal to testify under oath before such officer or his authorized deputy is likewise a misdemeanor, while he and such a deputy may administer such oath, and also oaths in the taking of any affidavit or deposition which may be necessary or be required by law or by any rule or regulation made by the Superintendent in connection with his duties. A false statement under such oath is declared a felony. This administrative officer then has the power of investigation into acts which may constitute felonies by taking and requiring evidence. Bougldy speaking, he may be likened unto an examining magistrate, save that he has no power of committal. But, on the other hand, if the affidavit used in the case at bar was evidence, it is not too much to say that he lias a power beyond that of such magistrate, in that he can in effect require, under the penalty of a misdemeanor, one under investigation for a crime to make a statement under oath, which tlie magistrate cannot do. (Code Crim. Proc. § 198.)

First. The proceeding in which the deposition was secured was a criminal case within the purview of these constitutional safeguards. It was an investigation to ascertain whether there had been an illegal registration which might constitute a felony; for the defendant had registered as a voter, and if he had knowingly made a false registra-tion he was guilty of a felony. (See Penal Code, § 41a.) Thereafter he was required to attend before the Deputy State Superintendent by subpoena. When he came he was told by the deputy that his office had received some information to the effect that there were three men registered from 413 Henry street who did not reside there, of whom the defendant was one. The deputy testifies that he was investigating the suggested illegal registration of the defendant at the time this affidavit was taken, and that he entitled it “ The People vs. Joseph J. Cahill (the defendant), Case 354.” In Counselman v. Hitchcock (142 U. S. 547, 562) it is said: “ This provision must have a broad construction in favor of the right which it was intended to secure and further: It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases, but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as' broad as the mischief against which it seeks to guard.” In People ex rel. Taylor v. Forbes (143 N. Y. 219, 228) the court, per O’Bkieh, J., after discussion of various cases, say: The principle established by these decisions is that no one shall be compelled in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or connection with any criminad offense of which he may then'or afterwards be charged, or the sources from which or the means by which evidence of its commission or of his connection with it may be obtained.” (See, too, Wigmore Ev. § 2252.)

Second. The defendant at that time should not be regarded as a mere witness, but as one under investigation for a crime. He was called by a subpoena in consequence of information that he himself had made an illegal registration. He was informed of this fact by the deputy when he obeyed the subpoena. His case was under investigation when he was called upon to make the affidavit, and as I have said it was entitled “ The People v. Joseph Cahill, Case 354 ” (the name of the defendant).

Third. He was compelled to make the affidavit. He was brought before the deputy by a subpoena to which disobedience was a misdemeanor. (Laws of 1905, chap. 689, § 7.) If he had refused to give information he was likewise guilty of a misdemeanor. If he had refused to make the oath to his statement, he was declared guilty of a misdemeanor. (Ihid.) In People v. Courtney (94 N. Y. 490) the court say: The Constitution primarily refers to compulsion exercised through the process of the courts, or through laws acting directly upon the party, and has no reference to an indirect and argumentative pressure such as is claimed is exerted by the statute of 1869.” In People v. Sharp (107 N. Y. 446) the court say : “ A person who yields from the necessity of obedience cannot be said to have the power of acting by his own choice. And where the law says he shall be compelled to attend and shall be compelled to testify, acquiescence is not election, and he is not one of whom it can be said he receives no injury from that to which he willingly and knowingly agrees and consents. There cari be no volition where there is neither power to refuse nor opportunity to elect.”

Fourth. He was not afforded complete immunity by section 41q of the Penal Code. That section makes an offender a competent witness against another person. It is the testimony so given ” that cannot be used in any prosecution, and it is any such “ person testifying ” who may plead the giving of testimony ” as a bar. It is to be noted that the 2d sentence is, “ The testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person testifying.” And the 3d sentence is, “ Any such person testifying shall not thereafter be liable to indictment, prosecution or punishment for the offense with reference to which his testimony was given .” There is a manifest distinction between the use of the testimony in that it is excluded from use in any prosecution civil or criminal, and the prosecution of the person, for that is limited to the offense ■ as to which he testified. The question up in this case is as to the use of the testimony, and hence if the immunity afforded by this section does extend to a person in the situation of the defendant at the time he made the sworn statement, it makes for him absolutely. If the section does not apply to such person, then it does not prevent his plea of invasion of his constitutional and statutory rights. In Counselman v. Hitchcock (supra, p. 585) the court say: “ It is quite clear that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so'broad as to have the same extent in scope and effect.” And further: “ We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States.” And in Taylor's Case {supra) the court say : “ It seems that in such cases nothing short of absolute immunity from prosecution can take the place of the privilege by which the law affords protection to the witness.” It is to be noted that the provision, section 712 of the Penal Code, refers explicitly to the examination of a person as a witness, and is exclusive of a statement made by one while under investigation which is directly directed, as in the case at bar, at his commission of a crime. If it were not thus limited and were applicable to this case, then one could be convicted of a crime with the help of self-inc.riminating evidence obtained when he was under investigation looking to his commission of another crime.

It cannot be urged that the defendant by omitting to assert his rights at the time of making the affidavit waived them, although that view is sometimes advanced in other jurisdictions. (People v. Sharp, 107 N. Y. 445.) Even if he could be held to a waiver, the waiver must be limited to that proceeding, and lie was not thereby precluded from taking his objection at the trial of this indictment. (Wigmore Ev. § 2276, subd. 4, and authorities cited.)

On the general principle here discussed, I need but refer to People ex rel. Taylor v. Forbes (supra) .and Counselman v. Hitchcock (supra), disapproving People ex rel. Hackley v. Kelly (24 N. Y. 74). It seems to me, then, that the evidence sought to be introduced came into existence by violation of the constitutional and statutory provisions declarative of the maxim “ JVemo tenetur seipsum prodere ” and could not be regarded as legal evidence competent against the defendant. (See, too, State of Minnesota v. Froiseth, 16 Minn. 296.) It is not an answer to these legal objections to say that the defendant need not have committed perjury; that if he had told the truth his statement would not have been evidence to prove his illegal registration, for the question is whether his statement, when thus compelled from him, is competent evidence against him to prove the crime of perjury. It is urged that this conclusion means that none can be convicted of such a perjury. If this be so, then the question is whether the constitutional and statutory provisions must be nullified or modified in order that this statute of 1905 may be enforced by establishing perjury prescribed by it perforce of a compulsory swearing to a compulsory statement elicited from the suspect himself as prescribed by it. A statute which can afford such a result as was worked in this case goes far in inquisition. As I have said, even on examination before a magistrate the defendant’s statement is made without oath. (Code Crim. Proc. § 198.) This is not the question of a perjury assigned to an incompetent witness as in Chamberlain v. People (23 N. Y. 85), and the case upon which it was decided (Van Steenbergh v. Kortz, 10 Johns. 167), but the point is whether this statemónt was competent evidence against the defendant on this trial.

Milleb, J., concurred.

Judgment of the County Court of Kings county affirmed on reargument. 
      
      See State Const, art. 1, § 6; U. S. Const, 5th Amendt.— [Rep.
     
      
       See Laws of 1869, chap. 678.— [Rep.
     