
    Brunswick Construction Co., Inc. vs. George Leonard et al.
    Cumberland.
    Opinion, January 25, 1954.
    
      Basil A. Latty, for plaintiff.
    
      Harold J. Rubin, for defendant.
    Sitting : Merrill, C. J., Thaxter, Fellows, Williamson, JJ. Tirrell and Webber, JJ., did not sit.
   Thaxter, J.

This is an action brought against the defendants jointly. There are two counts, one for the conversion of a motor truck belonging to the plaintiff which it is alleged that the defendants took without authority or permission of the plaintiff; the second count is in case alleging that they drove the truck to Edgecomb, in the State of Maine, where they carelessly drove it off the road whereby it was seriously damaged. They were alleged to be intoxicated. There are two crimes imputed here by the pleadings ; one, taking a motor vehicle without the consent of the owner; and the second, driving under the influence of liquor. The defendants pleaded the general issue. There was evidence that the defendants were intoxicated, but who was driving the vehicle, or who actually took it, or whether the intoxication of the driver had anything to do with the accident, does not appear. The defendants rested without putting in any defense.

The plaintiff put Baker on the stand and asked him certain questions which, if answered, might have elicited the necessary information as to liability. The witness refused to answer on the ground that the answers might tend to incriminate him. He was sustained in such refusal by the presiding justice, who explained to him what his rights were under both the state constitution, Article I, Sec. 6, and under the Fifth Amendment of the Constitution of the United States, both of which are to the effect that a witness is protected from giving evidence against himself.

The Fifth Amendment to the Constitution of the United States has been liberally construed by the United States Supreme Court in the case of Counselman v. Hitchcock, 142 U. S. 547, 585, 35 L. ed. 1122, as follows:

“It is a reasonable construction, we think, of the constitutional provision, that the witness is protected ‘from being compelled to disclose circumstances of his offense, the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction without using his answers as direct admissions against him’.”

We need cite only the language of our own court in the case of Gendron v. Burnham, 146 Me. 387, 407, to show how broad the privilege against self incrimination is:

“An examination of the questions and the background against which they were asked and a consideration of the nature of the inquiry before the grand jury makes it apparent that nearly all, if not all, of the questions which the prisoner refused to answer could have been self incriminatory, within the rule set forth in Counselman v. Hitchcock, supra, and that in all probability most of the answers, if truly given, would have been of that nature.”

From this language, construing both the Fifth Amendment to the Constitution of the United States and our own constitution, it is apparent that the privilege against self incrimination not only applies to a case where a witness is directly charged with a crime but to a case where he may be asked to disclose the circumstances of an offense, the sources from which, or the means by which evidence of its commission or of his connection with it may be obtained “without using his answers as direct admissions against him.”

Using such interpretation of the privilege against self incrimination, it hardly needs to be argued that the privilege against it applies to the answers which were sought to be elicited from the questions asked of the witness Baker in this case.

He was asked to disclose where he was, and his answer to such inquiry might well have been the basis for the disclosure of what he was doing*, even to giving information of whether he was driving the truck, which may have been in itself under the circumstances of this case a criminal offense either in taking the truck without permission, or of driving it while under the influence of liquor.

The ruling of the sitting justice excluding such evidence on the ground of privilege was undoubtedly correct. Without such evidence there was no case whatever against either one of the defendants here. The substance of the case against either one of them is not present. We can conjecture that they took the truck and drove it; but conjecture is not enough, as we many times have said. That is all that there is to this case.

The ruling of the presiding justice in excluding the questions to the witness Baker, in denying the plaintiff’s motion for a directed verdict against the defendants, and in granting a motion for a directed verdict in favor of the defendants, were all correct.

Exceptions overruled.  