
    McGorray, Sheriff, v. Sutter.
    
      Habeas corpus resorted to by witness — Committed for contempt in-refusing to answer — Is collateral attack — Burden rests on plaintiff — Assumption of witness that answer would incriminate— Not conclusive, when — Law of evidence.
    
    1. A resort to a suit in habeas corpus by a witness who has been committed to jail by order of the court'of common pleas for refusing to testify is a collateral attack upon the order of commitment, and the plaintiff assumes the burden of showing that it is void.
    2. When a witness refuses to answer a question propounded to him, basing his refusal upon the alleged reason that his answer . would incriminate him, his answer is not conclusive with respect to the incriminating character of the evidence sought to be elicited, and he may be required to answer, if by any inquiry which does not invade his immunity it is made to appear to the trial judge that his answer would not have the tendency claimed by him.
    (No. 11596
    Decided June 8, 1909.).
    Error to the Circuit Court of Cuyahoga county.
    One Norman M. Geer was placed on trial in the court of common pleas upon indictment which charged him with having procured, a criminal abortion upon Acldie Sutter. • She was called as a ■ witness for the state. Upon her examination, questions were propounded to her which she refused to answer because, as she stated, her answer would tend to. incriminate her. - Whether-they would SO' tend was made the subject of -an inquiry by the judge of the court of common pleas, who reached the conclusion that they would not so tend, and that her claim was not made in good faith. The witness, was thereupon ordered to answer the questions, and as she persisted in her refusal she was committed as for a contempt. The question which she refused to answer, and all that we know of the action of the court with respect thereto, appear in the order of commitment, which is as follows: “In the Matter of Contempt of Witness. This day, Addie Sutter, a witness in this action, having been duly sworn as such witness and called upon to testify, refused to answer the following questions propounded to her by the prosecuting attorney, to-wit: 'What, if anything, did you say to him, or he say to you ?’ And the said witness thereupon further refused to answer the following question propounded to her by the prosecuting attorney, to-wit: 'Did the doctor administer to you any treatment in July of this year, in his office at the time you testified the other day that you first saw him?’ The said witness stated that her answer to said questions would tend to incriminate her. And the said witness having been personally examined, touching her said refusal to answer said questions and her reason for such refusal, and the court having heard the evidence adduced in said matter, it is found by the court that the said questions are pertinent to the issues in this case; that her refusal to answer said questions is not in good faith, and that answers to said questions, or either of them, will not criminate said witness, or tend in any way to criminate her.' Thereupon the witness having been directed by the court to answer the said questions and each of them, and the said witness persisting in her refusal to answer the same, the court finds that the said Addie Sutter is thereby guilty of contempt of court. It is therefore ordered that the said Addie Sutter, by reason thereof, pay a fine of $50.00, for which execution is awarded against her, and that she be imprisoned in the jail of this county for the period of ninety days, unless she shall before the expiration of said period purge herself of said contempt, or shall be otherwise discharged.” She thereupon filed in the circuit court a petition for habeas corpus, and upon the hearing the order of commitment appeared as the sole ground for her detention. The circuit court ordered the sheriff to release her from custody, and this petition in error is prosecuted for a reversal of that judgment. *
    
    
      Mr. S. V. McMahon, prosecuting attorney, and Mr. William A. Carey, assistant prosecuting attorney, for plaintiff in error.
    A writ of habeas corpus cannot be converted into a writ of error to correct irregularities or informalities. This inquiry is to be strictly limited to the mere question of jurisdiction and power. Ex parte Wagener, 1 Dis., 11; Ex parte Bushnell, 9 Ohio St., 182; Ex parte Shaw, 7 Ohio St., 81; Ex parte Van Hagan, 25 Ohio St., 426; Ex parte McKnight, 48 Ohio St., 588; Church on Habeas Corpus, Sections 315, 317.
    When a witness claims his privilege, but is informed by the court that he must answer, and that his answer cannot be used against him in any criminal proceedings, he must answer, and if' committed will not be discharged on habeas corpus. Church on Habeas Corpus, Section 332.
    It is the well settled rule that the writ of habeas corpus does not perform the office of a writ of error or an appeal in respect to the matters of fact involved in the proceedings complained of. If in those proceedings the court had jurisdiction of the subject-matter and of the person, the validity of its judgment cannot be collaterally attacked on this writ for error in the original suit, nor can the truth of the facts there found be controverted in the new and collateral proceedings. Church on - Habeas Corpus, Sections 227, 340; Ex parte Terry, 129 U. S., 289; Ex parte Cuddy, 131 U. S., 280; In re Tyler, 149 U. S., 164; In re Savin, 131 U. S., 267; United States v. Pridgeon, 153 U. S., 48.
    Under a writ of habeas corpus the inquiry is addressed not to errors, but to the question whether the proceedings and judgment rendered therein are for any reason nullities; and, unless it is affirmatively shown that the judgment' or sentence under which the petitioner is confined is void, he is not entitled to his discharge. Church on Habeas Corpus, Section 227; Turner v. Conkey, 132 Ind., 248; Ex parte Lennon, 33 W. L. B., 34.
    We maintain that a proper ‘remedy other than habeas corpus was afforded the defendant in error by the statutes of Ohio and that her remedy was a proceeding in error. Sections 5649 and 6707, Revised Statutes.
    From the foregoing authorities it is apparent that the only inquiries the circuit court could make were: 1. Did the court of common pleas have jurisdiction to commit? 2. Was the commitment regular ?
    If the first question be answered in the affirmative the time of this court need not be taken to consider the second question for that is disposed of by Section 5729, Revised Statutes, and the cases cited thereunder, and if the first question be decided in the affirmative the allowance of the writ of habeas corpus bv the cUcuit court was manifestly error. Hatch v. St. Clair, 2 C. C., 163; Madden v. Smelts, 
      2 C. C, 168; State, ex rel. Hamilton, 3 C. C, 10; Ex parte Mosier, 8 C. C, 324.
    The circuit court had no right or ’power to allow the writ of habeas corpus if it appeared upon the petitioner’s own showing, that, if brought into court, and the cause of commitment inquired into, she would be remanded to prison. Ex parte- Terry, 128 U. S, 289; Ex parte Early, 3 Dec. Re, 105; Ex parte Bushnell, 8 Ohio St, 599; Ex parte Shaw, 7 Ohio St, 81.
    Every reasonable presumption prevails in favor of the regularity and legality of the proceedings of courts of record acting within their jurisdiction and the validity of their judgments, in the absence of affirmative error appearing on the record. Johnson v. Mullin, 12 Ohio, 10; Warder v. Jacobs, 58 Ohio St, 77) Sheehan v. Davis, 17 Ohio St, 571; Wilson v. Giddings, 28 Ohio St, 556; In re Barr, Goebel, 85.
    All the facts essential to jurisdiction are presumed to exist and to have been found by the court and all the proceedings necessary to the validity of the court’s action are presumed to have been taken. 9 Ency. of Evidence, 927, 929, 933; Matthews v. Hoff, 113 111, 90; Jackson v. State, 104 Ind, 516; Steinhardt v. Baker, 163 N. Y, 410; Johnson v. Mullin, 12 Ohio, 10; Trimble v. Longworth, 13 Ohio St, 431; Reynolds v. Stansbury, 20 Ohio, 344, 55 Am. Dec, 459; Beebe v. Scheldt, 13 Ohio St, 406.
    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; that if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question. Subject to this reservation, a judge is bound to insist on a witness answering unless he is satisfied that the answer will tend to place the witness in peril. United States v. Burr, 25 Fed. Cas., 38; Wigmore on Evidence, Section 2271; State v. Thaden, 43 Minn., 253; Wharton’s Crim. Evidence (8 ed.), Sections 466, 469; Taylor on Evidence, Sections 1457, 1458; Greenleaf on Evidence (16 ed.), Section 469d.
    If any prosecution or penalty or forfeiture, which the witness fears, be barred by lapse of time; or if the offense has been pardoned, or the penalty or forfeiture waived, or if in any other way, the reason for the privilege has ceased, the privilege itself will cease also, and the witness will be bound .to answer. Taylor on Evidence, Section 4158a; Jones on Evidence, Section 891.
    The court is not bound by the sworn statement of the witness that in his belief the answer would tend to criminate him. Though the witness will be compelled to answer when it appears to the court that such answer will not interfere with the privilege, yet the court should be satisfied of this fact and also that the witness is mistaken or acting in bad faith, when the claim of privilege is made. Jones on Evidence, Sections 888, 889.
    It is the province of the court to decide whether a proposed question has a tendency to criminate a witness; and that it is the duty of the court, while it protects the witness in the due exercise of his privilege to take care that he does not, under the pretense of defending himself, screen others from justice, or withhold evidence which he might safely give. Greenleaf on Evidence, Section 4694; Phillips on Evidence (5 Am. ed.), *933, page 782; 11 Am. & Eng. Ency. Law (2 ed.), 542; 1 Best on Evidence (Morgan ed.), 193.
    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. 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. State v. Thaden, 43 Minn., 253; 3 Wigmore on Evidence, Section 2271.
    The foregoing is the rule contended for by plaintiff in error. And we maintain that it is one adopted by all the text-writers and is supported by the following adjudicated cases: Calhoun v. Thompson, 56 Ala., 166; Ex parte Senior, 37 Fla., 1; Rickman v. State, 2 Greene (la.), 532; State v. Duffy, 15 la., 425; Mahanke v. Cleland, 76 la., 401; Stevens v. State, 50 Kans., 712; Territory v. Nugent, 1 Mart., *114; Winder v. Diffenderffer, 2 Bland, 166; Commonwealth v. Braynard, Thatcher’s C. C., 146; Ward v. State, 2 Mo., 120; In re ■Moser, 138 Mich., 302; lanvrin v. Scammon, 29 N. H., 280; Fries v. Brugler, 21 Am. Dec., 53; People v. Mather, 4 Wend., 229; Curtis v. Knox, 2 Den., 341; Forbes v. Willard, 37 How. Pr., 193; People, ex rel., v. Forbes, 143 N. Y., 219; Commonwealth v. Bell, 145 Pa. St., 374; Floyd v. State, 7 Tex., 216; Ex parte Park, 66 Am. St. Rep., 835; Ex 
      
      parte Andrews, 100 S. W. Rep., 376; Chamberlain v. Willson, 36 Am. Dec., 356; In re Con. Rendering Co., 66 Atl. Rep., 799; Temple v. Commonwealth, 5 Va. L. J., 366; Kirschner v. State; 9 Wis., 140; State v. Lonsdale, 48 Wis., 348; Ex parte Irvine, 74 Fed. Rep., 954; Brown v. Walker, 161 U. S., 591; United States v. McCarthy, 18 Fed. Rep., 87; Wyckoff v. Wagner, 99 Fed. Rep., 158; In re Walsh, 104 Fed. Rep., 518; Mackel v. Rochester, 102 Fed. Rep., 314; Foot v. Buchanan, 113 Fed. Rep., 158; In re Franklin Syndicate, 114 Fed. Rep., 205; In re Kanter et al., 117 Fed. Rep., 357; In re Levin, 131 Fed. Rep., 389; In re Hess, 134 Fed. Rep., 109; In re Grant, 143 Fed. Rep., 661; United States v. Collins, 146 Fed. Rep., 553; United States v. Collins, 145 Fed. Rep., 709; Ex parte Cohen, 104 Cal., 524; Bradley v. Clark, 133 Cal., 196; People v. Iron Co., 201 111., 236.
    For English cases on the subject: Ex parte Reynolds, 22 Am. L. Reg., 21; Reg. v. Boyes, 1 B. & S., 311.
    
      Mr. O. W. Broadzuell, for defendant in error.
    A witness is not bound to answer any question that will, directly or indirectly, criminate himself, and he had a right to determine for himself whether the answer would have that effect, was the opinion of the court in the case of Warner v. Lucas, 10 Ohio, 336. This case was decided in 1840 by this court, and has stood as the unquestioned law of Ohio since that time.
   Shauck, J.

The.record before us presents no question respecting the mode of inquiry by which the judge of the common pleas court ascertained the facts upon which he concluded that the answers of the witness to the questions propounded to her would not tend to incriminate her, nor respecting the sufficiency of the facts upon which he based that conclusion. Nor was any such subject of inquiry presented to the circuit court. If the witness desired the judgment of a reviewing court, either with respect to the sufficiency of the facts upon which the trial judge founded his conclusion, or as to the propriety of the mode to which he resorted to ascertáin such facts, it would have been competent for her to take a bill of exceptions presenting the grounds of her complaint as the predicate of a petition in error for the reversal of the order of commitment. By thus directly attacking the order, the error could have been shown, if any had intervened. But by resorting to a suit in habeas corpus, she has elected to meet the presumption, which the present record does not exclude, that the trial court .regularly and properly exercised whatever authority it had in the premises; and she has assumed the burden of showing that the order of commitment is void, because the court was without authority to make it in view of her claim that her answers to the questions propounded would incriminate her. This distinction results obviously from the essential differences between a proceeding in error and a suit in habeas corpus. .It was pointed out in Ex parte McKnight, 48 Ohio St., 588.

We do not suppose that this distinction has been overlooked, either by the circuit court or by counsel for the defendant in error. It is said that the circuit court was of the opinion that the witness should be discharged from custody because the order of commitment was void, the trial judge being without authority to make it. That conclusion results, according to the argument, from the view that the order shows that the witness refused to answer upon the ground that her answers would incriminate her, and that her answer was conclusive with respect to their incriminating character. The view that the answer of the witness should be accepted as conclusive in all cases, is not supported by any reason presented for our consideration, nor can it be reconciled with the generally accepted doctrine upon the subject. It is said, however, that it is not only justified, but required by the decision of this court in Warner v. Lucas, 10 Ohio, 336. That case was decided and reported before the court adopted the rule of preparing an authorized syllabus. Two editions of the tenth volume present different syllabi of the case cited, and both are unsuccessful attempts of the reporter to state the points decided. This will sufficiently appear from a brief analysis of the case. It was a civil action to recover damages alleged to have been sustained by the plaintiff in consequence of the refusal of the defendant to testify, when called as a witness in a former action. It was brought under favor of a statute which provided that there should be such liability for wilfully refusing to testify. It does not appear to have been thought by either counsel, or the court, that the defendant was liable under the statute for exercising a legal privilege or insisting upon a guaranteed immunity. The precise question presented and determined is plainly suggested by the error assigned. Upon the trial in the court of' common pleas of the action for damages, the plaintiff proposed to show what were the questions which the defendant, as a witness, on the former trial had refused to answer, because, as he claimed, the answers would tend to incriminate him, and further to show that his answers thereto could not have the effect which he claimed. To this evidence an objection was interposed by the defendant and sustained by the court. Whether the court of common pleas had erred in sustaining this objection to the testimony, thus giving final effect to the claim of the witness instead of presenting that question for determination upon the trial of the action for damages, was the only question presented to this court. The court concluded that the evidence was competent, and because of the error of the trial court in sustaining the objection to its introduction, the judgment was reversed. As this court decided only that in that case the claim of the witness was not conclusive with respect to the incriminating character of the evidence sought to be elicited, it cannot be said to have decided that the claim of the witness will be conclusive in any case in which it appears to be ill founded, or made in bad faith for the purpose of defeating the administration of justice in the case in which the witness is called.

Should the claim of the witness be conclusive in a case of that character? The answer to that question seems to be suggested by the aphorism that the law regards substance rather than form. Throughout the seven centuries of Magna Charta, prolific source of the provisions of the charters of individual right which we call constitutions, there has been in England and here a persistent departure from the practice of extorting confessions from accused persons; not because of any desire that the guilty should escape punishment, but because the practice is believed to deny to innocence its proper protection. The principle finds expression in our Bill of Rights in the provision that, “No person shall be compelled, in any criminal case, to be a witness against himself.” To this principle we logically refer the immunity of a witness from giving testimony in any case which would tend to incriminate himself, as well as the rule that in order that a confession by an accused person may be competent evidence against him, it must be voluntary. The significance of this is, that a citizen shall not, by coercion or intimidation, be led to render aid in his own conviction of an illegal offense. Every view of the principle and of the rules of evidence founded upon it must effectuate that purpose. But it would be a departure from the principle, and a perversion of the rules stated, to hold that the witness may use the immunity to prevent the discovery of the truth in the case in which he is called, or to shield himself from mere embarrassment or humiliation. The end of the rule is protection of the witness from giving testimony which would tend to convict him of a criminal offense. Certainly the modes of inquiry to which the trial judge may resort to ascertain that the claim of the witness is not well founded must not invade his immunity. He must not extort from the witness a statement which would be a plenary confession of guilt, or the statement of a circumstance which in connection with other circumstances would establish his guilt. But if, in any mode consistent with the immunity, he may acquire the basis of a clear conviction that the claim of the witness is ill founded, he may require him to answer. The judgment under review, and the main proposition of counsel for the defendant in error, necessarily imply'that the trial judge could not, by any permissible inquiry, have become possessed of facts which would justify his conclusion that her answers would not incriminate her. To show that position to be untenable, it is only necessary to suggest that without eliciting any information whatever from her, the trial judge may have learned that her offense had been pardoned; or, by consulting the records of the court in which he sat, that she had been indicted for the offense, and the indictment prosecuted to acquittal or conviction.

The view that the answer of the witness is not conclusive with respect to the incriminating character of the evidence sought to be elicited, is in accordance with the view taken by Chief Justice Marshall in Burr’s case, which, as will appear from the reporter’s abstract of the excellent brief of counsel for plaintiff in error, has been widely commented upon with approval. It was approved in Warner v. Lucas.

Upon reconsideration of the present case, for the reasons stated, the judgment of the circuit court will be reversed.

Judgment reversed.

Crew, C. J., Summers, Spear, Davis and Price, JJ., concur.  