
    The People v. Robert W. Lewis.
    (Supreme Court—Rome Oyer and Terminer,
    October, 1895.)
    A witness is not excusable from answering in relation to a charge of bribery before the grand jury on the ground that he may be prosecuted, for perjury if his testimony differs from that previously given before the judge in the same matter, as section 79 of the 'Penal Code prohibits the use of such testimony against him.
    A witness who has been offered a bribe to influence his action as a delegate at .a political convention is excusable from answering on the ground ■that his testimony may tend to criminate him in the charge of bribery, as the.statute affords Mm' no immunity from prosecution for taking á bribe.
    ■Section 41r of-the Penal Code does not apply to.bribery at caucuses or ■ conventions. .
    The fact that the witness has previously testified to his innocence in the transaction does not affect the force of his testimony that his answers , may tend to incriminate him., as the evidence which he may reveal may establish his guilt instead of innocence.
    Motion by the plaintiff that the defendant be adjudged guilty of the crime of contempt of court, and punished accordingly. ,
    The. offense charged is that he has refused to answer certain questions; put to him-by the grand jury now in session at this. . court:
    . George 8. Klock, District Attorney, for motion.
    
      A. D. Kneela/nd, opposed.
   Wright, J.

The grand jury has tinder investigation a charge against a person whose name is unknown for the crime of bribery, under section 41 of the Penal Code, which provides that any person who, by bribery, menace or other corrupt means, directly or indirectly, attempts to influence the vote of any person entitled to vote at any political caucus or convention, is guilty of a misdemeanor.

The defendant, on August 10, 1895, was a duly elected delegate to the Reptiblican county , convention of Oneida county. The charge before the grand jury is that a person, whose name is unknown, attempted, prior to said convention, to influence the defendant, as such delegate, to vote in the convention for Mr. Coggeshall as nominee for the office of state senator, by offering him the sum of $500 therefor. The defendant was sworn as a witness before the grand jury and the following question, .among others, was put to him: Did any person attempt to bribe you' on the fourteenth day of August last or corruptly influence your action as a delegate to the Republican county convention.”

The defendant refused to answer on the ground that his testimony might incriminate him.

The Constitution of the United States provides that no person shall be compelled in any criminal case to be a witness against himself.”

This provision has been incorporated into the Constitution of our own state, and has long been regarded as one of the safeguards of civil liberty.

Judge O’Brien, in People ex rel. Taylor v. Forbes, Justice, 143 N. Y. 227, speaking of this provision, says: “ It should be applied in a broad and liberal spirit, in order to secure to the citizen that immunity from every species of self-accusation implied in the brief but comprehensive language.”

The defendant, therefore, in his silence, is behind the shield of the Constitution, and enjoys absolute protection against every species of judicial compulsion as a witness to self-accusation of crime, unless the statute affords him absolute immunity from punishment for any crime which his testimony here called for might be competent as tending to prove, or unless it is so perfectly clear and plain as to preclude all reasonable doubt that the answer cannot possibly tend, in any degree, to subject him to the peril of criminal prosecution. Janvrin v. Scammon, 29 N. H. 289.

The learned district attorney urges that the statute affords the defendant absolute immunity, and cites section 79 of the Penal Code, which provides as follows“ A: person offending against any provision of this Code relating.to bribery is a competent witness against another person so offending,' arid may be compelled to attend and testify" upon any trial, hearing, proceeding or investigation in the same manner as' any other person. But the testimony so given shall not be used ' in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to' the giving of a bribe, which has been, accepted shall not thereafter be liable to indictment, prosecution or punishment for that bribery, and .may plead or prove the giving of testimony accordingly in bar of such indictment or prosecution.”

. The defendant’s counsel, however, urges that the , above statute does not protect his client against liability on a charge' of perjury in case liis testimony before the' grand jury should differ materially from that heretofore given by him touching this same matter on an examination before the comply judge.

But that is untenable, for neither his testimony given before the county judge nor that which he may give before the grand jury can be the basis of a charge, of perjury, or used against him in any civil or. criminal proceeding. ■ .

Both of' said ■ testimonies, under section 79 above quoted, are forever sealed in absolute judicial confidence and legal secrecy. . ,

The defendant, therefore, will be in no danger of a prosecution for- the crime' of perjury if he shall'answer the.questions propounded by the grand.jury.

. We are now brought to the question., is the defendant excused from answering.on the ground that his testimony m'ay ■criminate him in .the charge of bribery \ /

The district attorney urges that sections 41r and 79 of the Penal Code afford the. defendant absolute immunity. Section 41r provides that the giving of testimony either by the bribe giver or bribe taker shall be a bar to any criminal prosecution' against the person so testifying. But that section relates-solely to bribery respecting the exercise of the right of "franchise, and does not touch the matter of bribery at caucuses or conventions. :

And although section 79 provides that neither the testimony of the bribe giver nor" bribe taker shall be used in any civil or criminal proceeding against the person so testifying, yet it-provides immunity from criminal prosecution for such bribery only to the bribe giver, and provides no such immunity to the bribe taker; The defendant, therefore, does not enjoy statutory protection from "prosecution on the charge of" bribery.

We are now brought to the third question, is it so perfectly clear a,nd plain as to preclude all reasonable doubt -that the defendant’s answers to the questions propounded to him cannot possibly, tend, in any degree, to subject him to the peril of criminal'prosecution ?

I think not. His testimony may tend to reveal the fact that he actually received a sum of money .as a. bribe, and the name and identity of the person from whom he received it, and the names of other witnesses, and also the facts surrounding the transaction, which might prove his criminality. Since section 79, above mentioned, affords immunity to the bribe-giver ¿rom criminal prosecution because of bribery at the convention, but none to the bribe taker, evidently it would be dangerous for the defendant to reveal the name of the bribe giyer, whose testimony might be adduced against him. on a. charge of bribery.

The fact that he testified before the county judge to his absolute innocence in the matter, and that the offer of $500 for his vote, made by some person whose name he declined te give, was indignantly spurned by him, does not neutralize the force of his claim to the constitutional protection. People v. Forbes, supra. The evidence which he. may reveal may establish his' guilt instead of innocence.

Therefore, his statement under oath that his testimony ydll tend to incriminate him has legal force in this case, and consequently the'Constitution shield's him from the statutory force of said section 79,-' which, .otherwise would compel him to testify.

This view is sustained by authority.- '•

In the case People v. Forbes, supra, the question involved was the'right of the witness, Taylor, to refuse "to answer certain questions put to him by the grand jury touching his knowledge of a homicide, caused- by the administration of chlorine gas.

, After testifying to his entire innocence, and denying that' he.was the author or in anyway connected with the perpetration of. the offense, he Was questioned as to particular .facts and circumstances, which he refused to answer on the ground that his testimony might tend to- incriminate him. judge. O’Erieu, in delivering the opinion- of the court, after refer- . ring to1 the decisions of many state and" federal courts, says: “The principle.established by these decisions is,"that" no1 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 crim-' inal offense of which he may then- or afterwards be charged, or the' sources from which evidence of its commission, or of his connection with it, may be obtained.” And the court held that the claim of - privilege by the witness was well taken.

In Counselman v. Hitchcock, 142 U. S. 547, the question decided is very similar to the - one under discussion. Th that case the.grand jury was engaged in the investigation of offenses committed by certain railroad companies in violation of the '“ Interstate Commerce Act of Congress,” and a witness refused to answer certain questions as to the tariff rates which had been allowed him by some of the railroads, on the ground that -his testimony might tend to criminate him.

There is a general federal statute which provides that the testimony given by a witness on an investigation concerning the violation of the “ Interstate Commerce -Act ” shall not be given in evidence against him, subsequently, in any civil or criminal action or proceeding. U. S. B. S. § 860.

The court sustained the position of the witness, and held that the meaning of the constitutional privilege under discussion is “ that a witness is protected from any compulsory disclosure of the circumstances of his offense, or the source 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.”

Judge O’Beien, in People v. Forbes, supra, in commenting upon the case of Counselman v. Hitchcock, and on the application of the federal statute providing that the testimony of a witness regarding the violation of the Interstate Commerce Act ” shall not be used against him, says : 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.” " And with regard to the force which should be given to the statement of the witness, that his answers may incriminate him, the judge further says “ The witness, who knows what the court does not know and what he cannot disclose without accusing himself, must, in such cases, judge for himself as to the effect of his answer, and if, to his mind, it may constitute a link in the chain of testimony sufficient to subject him to the hazard of a criminal charge, indictment or trial, he may remain silent.”

-The district attorney in this case is entitled to great commendation for his zeal' in ferreting out the truth respecting this notorious charge of political bribery, but the law will not permit him to obtain the testimony of the defendant for that purpose. The defendant is discharged.

Defendant discharged.  