Kendrick v. Commonwealth

Fauntlekoy, J.,

delivered the opinion of the court.

The bill of exceptions signed by the hustings court certifies that William Kendrick, then being before the grand jury to answer questions and give evidence on a bill of indictment which had been preferred and sent to the said grand jury in the said hustings court against Thomas Lyon, for unlawfully keeping and maintaining within the jurisdiction of the said court a certain gaming-table, commonly called a faro bank, and for then and there contributing money to allure other persons to bet at said game, he, the said William Kendrick, was asked by the-grand jury the following question:

“ Tell all you know about any person keeping or exhibiting, or being a partner, or concerned in interest in the keeping or exhibiting of any faro bank, or table A B C, or E O table, keno-table, or any other table of a like kind, or of any other unlawful gaming; whether the table or game be played with cards, dice or otherwise, on the 11th day of August, 1883, or at any time within twelve months previous thereto, at the house number 307, on Seventh between Broad and Marshall streets.” And the said William Kendrick, to the question so put to him by the said grand jury, for answer thereto said as follows: “ I cannot answer that question, because the answer to it would tend to criminate me, and would disgrace me.”

And the said William Kendrick, thus declining and refusing to answer the said question as put by the grand jury, *492 he, the said William Kendrick, was then and there reported to the honorable court by the grand jury; whereupon the judge of the said court read over to the said William Kendrick sections 20 and 22 of chapter 10 of the Criminal Code of Virginia, at the same time informing the said William Kendrick that, in the opinion of the court, he, the said William Kendrick, was fully protected; but the said William Kendrick, for the same reasons previously given, declined to answer the question aforesaid as propounded to him by the grand jury. Whereupon, for his said declining and refusing to answer :the said question so asked him by the grand jury, as required by the statute, section 20, chapter 10, of the Criminal Code, the said William Kendrick was, by the said hustings court, under the said 20th section, fined fifty dollars, and sentenced to confinement in the jail of the sai<3 city for a term of twenty days. To this judgment of the said hustings court, a writ of error was awarded by one of the judges of this court.

The question we have to decide is, whether upon the facts, as set out in the bill of exceptions, the hustings court was justified in requiring the witness to answer the question as asked; and, upon his failure to do so, to fine and imprison him.

The tenth section of Article I of the constitution of Virginia ordains : “ That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation; to be confronted with the accusers and witnesses; to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he he compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.” This section of the Bill of Rights of Virginia incorporated in her organic law proclaims and renders inviolable “a great, practical, *493 individual right, that no man should, anywhere, before any tribunal, in any proceedings, be compelled to give evidence tending to criminate himself, either in that or any other proceedings ”; and it is a precious, a most inestimable privilege and power of self-protection by the citizen against governmental oppressions, and especially such as may be exercised under the pretence and by the abuso of judicial power; and it ought to be construed with the utmost liberality consistent with the due execution of the laws and the safety of society. But while it is a settled maxim of law that no man is bound to criminate himself, it is also a rule of law and a necessity of public justice, that every person is compellable to bear testimony in the administration of the laws by the duly constituted courts of the country.

Chief-Justice Marshall said, in the famous Burr trial: “When two principles come in conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent. The principle which entitles the government to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded. When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judge would strip him of that privilege which the law allows him, and which he claims. It follows necessarily then, from this statement of things, that if the question be of *494 such a description, that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. It is. the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the. witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testiriiony which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such a case the witness must himself judge what his answer will be; and if he say on oath, that he cannot answer without accusing himself, he cannot be compelled to answer.”

In the case of the People v. Mather, 4 Wend. 229, Marcy, J., said: “ Where a witness claims to be excused from answering because his answer will have a tendency to implicate him in a crime or misdemeanor, or will expose him to a penalty or forfeiture, then the court is to determine whether the answer he may give to the question can criminate him, directly or indirectly, by furnishing diréct evidence of his guilt, or by establishing one of many facts which, together, may constitute a chain of testimony •sufficient to warrant his conviction, but which one fact; of itself, could not produce such result; and if they think the •answer may in any way criminate him, they must allow his privilege without exacting from him to explain how he would be criminated by the answer which the truth may oblige him to give. If the witness was obliged to show how the effect is produced, the protection would at once be annihilated.”

Whether the constitutional privilege of the witness can be taken away by the legislature at all, on any terms of indemnity, was expressly left undecided by this court, in Cullen v. Commonwealth, 24 Gratt. 624: “But (the court *495 ■said) we are clearly of opinion that before it can be taken away there must be absolute indemnity provided, and that nothing short of complete amnesty to the witness, an absolute wiping out of the offence as to him, so that he can no longer be prosecuted for it, will furnish that indemnity.”

In the late case of Temple v. The Commonwealth, 75 Va. (1 Matthews, 892), Judge Christian delivering the opinion of the court, said, “ the witness ought not, in any case, be compelled to answer, after declaring on oath that such answer may criminate himself, . . unless it clearly appears to the court that he is mistaken.”

In the same case Judge Staples said, “ If this were a prosecution for unlawful gaming, as defined by our statutes, I think the witness would be bound to testify, for he is fully protected by the provisions of the 20th section, already adverted to.” .

The case at bar is a prosecution for unlawful gaming— the plaintiff in error appealing for relief and immunity from fine and imprisonment, adjudged against him for contempt of the hustings court of the city of Richmond in refusing to answer a question put to him by the grand jury, and explained to him by the court, with its opinion, that the 20th and 22d sections of chapter 10, page 51, New Criminal Procedure 1878, afforded and secured to him absolute indemnity and complete amnesty against any possible penalty or procedure against him for any crimination ■or implication in the offence indicated by the pending prosecution in which he was called to testify. Section 20 enacts: “ No person, prosecuted for unlawful gaming, shall be competent to testify against a witness for the Commonwealth in such prosecution touching any unlawful gaming committed by him prior to the commencement of such prosecution; nor shall any witness, givin ; evidence either before the grand jury or the court in such prosecution, be ever proceeded against for any offence oí unlawful gaming com *496 mitted by him at the time and place indicated in such prosecution; but such witness shall be compelled to testify, and for refusing to answer questions, may, by the court, be fined a sum not exceeding five hundred dollars, and be imprisoned for a term not exceeding- six months.” The 22d section is : “In a criminal prosecution, other than for jury or an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination.”

We think that these provisions of the law (made and provided, doubtless, to meet the very exigency of cases-like the one under consideration), gives to the witness full indemnity and assurance against any liability to prosecution for a disclosure which he could be called upon to make as to his own implication, or complicity in the unlawful gaming as to which he was sworn and sent to' the grand jury to testify; it was the duty of the witness to testify, and, therefore, we do not think the hustings court erred in its judgment complained of.

The witness added to his plea for refusing to answer, that it would disgrace him. This is a question of character. It was said by Lord Eldon (1 Merivale, 400): “ Upon a question of character, I hold that supposing a man to be liable to a penalty or forfeiture, provided he is sued within a limited time, and that the suit is not commenced till after the limitation expires, he is bound to answer fully, notwithstanding the answer may tend to cast a very great degree of reflection upon his character and conduct.”

A witness who is called by the Commonwealth to testify as to violations of her laws, within his observation, may always assert his constitutional privilege and immunity from prosecution and punishment for his own implication in the unlawful act as to which he is compelled to testify; but the courts of Virginia will not recognize the Spartan morality which deprecates not thé perpetration, but only the exposure of crime.

*497 Upon the whole case, presented in the record, under review, we are of opinion that there is no error in the judgment of the hustings court complained of, and the same must be affirmed.

Lewis, P., and Hinton, J., concurred in the opinion of Fauntleroy, J.