Miskimmins v. Shaver

Coen, Justice,

(after stating the facts as above).

A number of questions arise in this case, none of which have been passed upon by this court. Some of them *401 are of serious importance, and, owing to the difference in the habeas corpus statutes in the various States and some conflict in the decisions, of considerable difficulty. Therefore, while the circumstances of the case have urged an immediate decision, we have deemed it better to take sufficient time to give the propositions a careful consideration and endeavor to reach a conclusion which could be relied on as a safe precedent in so serious a matter as the imprisonment of a citizen as a penalty for exercising what he claims to be a constitutional right.

Counsel for the defendant contend that the district judge having adjudicated the question of the legality of plaintiff’s imprisonment upon the same facts, this court ought not to again consider it; that the plaintiff might have come to this court by petition in error and should be required to avail himself of that remedy. All the authorities agree that there is no appeal from a hearing upon habeas corpus unless the right is conferred by statute. In many habeas corpus cases, as, for instance, where the custody of children is involved, it is without doubt an appropriate method of obtaining the opinion of the court of last resort. In cases like the present, where the petitioner is imprisoned and other proceedings are awaiting the decision of the questions, the necessary delays incident to a review by petition in error make it subject to serious objections, and if there is no other remedy entirely inappropriate and inadequate. We do not deem it necessary to decide in this case, however, whether proceedings in error are authorized by our statutes. For we think that our habeas corpus act, when considered in connection with the constitutional provisions bearing upon the question, clearly contemplates that the writ shall issue and a hearing be had, when upon the showing of the petitioner he would be entitled to relief, notwithstanding the fact that the writ may have been refused, or may have been issued and afterward dismissed, upon a hearing by another judge. It is said that ‘ ‘ by the great preponderance of authority, *402 the principle of res adjudicata, where not otherwise provided by statute has no application to habeas corpus cases, and a decision on one writ is no bar to the issuance of and proceedings on a subsequent habeas corpus. ’ ’ 9 Enc. Pl. & Pr., 1070. In Ex parte Lawrence, 5 Binney, 304, where the case had already been heard upon a habeas corpus upon the same evidence by the common pleas who remanded the prisoner, the supreme court of Pennsylvania refused to issue a second writ, but say in their decision: “We do not think that the act of assembly obliges this court to grant a habeas corpus, where the. case has been already heard upon the same evidence by another court, and we do not think it expedient in this case, because it has already been heard upon the same evidence, and the party is not without remedy, as he may resort to a homine replegiando. The court are not, however, to be understood as saying that they have not authority to issue a habeas corpus in such a case, if they should think it expedient. ” And this was not a case where the applicant was imprisoned, but involved the question of the right to his freedom of one held as a slave. In a case before Mr. Justice Nelson, at chambers, it was objected that the decision of the circuit court of the United States upon the return of a former writ of habeas corpus remanding the prisoner was conclusive, and a bar to any subsequent inquiry into the same matters by virtue of this writ. But after reviewing the authorities, the justice said: “The decision, therefore, by the circuit court, upon a previous writ of habeas corpus obtained on behalf of the prisoner, refusing to discharge him, will not relieve me from inquiring into the legality of the imprisonment under the order of the commissioner, upon the present application. ” Ex parte Kaine, 3 Blatchford, 5. And upon a hearing the prisoner was discharged. In People ex rel. Lawrence v. Brady, the relator was arrested upon a warrant of the governor of the State of New York upon the requisition of the governor of Michigan. A writ of habeas corpus was issued out of the supreme court, and upon a demurrer to the re *403 turn before the court of oyer and terminer, there was judgment against the relator and the writ was dismissed. Afterward another writ of habeas corpus was issued out of the circuit court of the United States, and there was judgment against the relator dismissing the writ and remanding the relator. Afterward another writ of habeas corpus was issued and returned before Mr. Justice Brady of the supreme court, and there was again judgment dismissing the writ and remanding the relator to the custody of the sheriff. The proceedings before Judge Brady were affirmed by the supreme court on certiorari and the writ of certiorari dismissed. The court of appeals on error to the supreme court dischai’ged the relator, tod the court say: “We are of the opinion that the previous adjudications in proceedings on habeas corpus are no answer to a new writ issued on the application of the relator. The case is not within the principle of Mercein v. The People (25 Wend., 64) where the controversy related to the right to the custody of an infant child. In this case the relator is restrained of his liberty; and a decision under one writ refusing to discharge him, did not bar the issuing of a second writ by another court or officer. ’ ’ (Referring to Ex parte Kaine, 3 Blatchford, 1, and the English cases Ex parte Partington, 13 M. & W., 679, and The King v. Suddis, 1 East, 306; People ex rel. v. Brady, 56 N. Y., 182.) And the point was again decided in the same way in People ex rel. v. Mc Intyre, 67 Howard Pr., 362. It may be here remarked that in the case of Graham, 7 Wash., 237 (34 Pac., 931), relied upon by counsel for the respondent, where the supreme court of that State denied an application because the matter had once been heard upon habeas corpus before a judge of the superior court, they, in terms, decide only a question of practice. While admitting their jurisdiction and conceding that the practice is different in some States, they hold that thé constitution does not require them to take jurisdiction under such circumstances, and they remit the applicant to his right of appeal, which seems to be provided for in *404 that State. And it is to be observed farther that, even upon the questions decided, the decision was by a divided court, two out of the five judges dissenting.

Brown on Jurisdiction, the latest test-book to which we have access on the subject, says: “A denial of the petition is not a bar to the second writ; but in some States the petitioner must show whether the question has been passed upon by any of the courts. The doctrine of res adjudicata has no application to this proceeding except where the statute provides for an appeal, which is the case in some States.” And in the note he cites Hawes on Jurisdiction, Section 181: “A decison under one writ of habeas corpus refusing to discharge a person restrained of his liberty is no bar to a second writ by another court or officer. In re Perkins, 2 Cal., 424; Ex parte Ellis, 11 Cal., 223-225; Matter of Ring, 28 Cal., 251; Yates v. People, 6 Johns, 416; In re Snell, 31 Minn., 110; Bell v. State, 4 Gill, 303; Ex parte Kaine, 3 Blatchf., 2, 5; Bonnett v. Bonnett, 61 Iowa, 200; Ex parte Foster, 5 Tex. App., 643; Ex parte Robinson, 6 McLean, 356; Ex parte Campbell, 20 Ala., 93; Ex parte Lawrence, 5 Binn., 304; People v. Brady, 56 N. Y., 185. A decision on habeas corpus is not appealable or subject to review; the doctrine of res adjudicata has no application to such a case, but it seems that a discharge under a writ of habeas corpus by a court of competent jurisdiction, being in favor of personal liberty, is final and conclusive, and a rearrest under the same charge is unlawful. Mc Farland v. Johnson, 27 Tex., 105; Matter of Ring, supra; Lea v. White, 4 Sneed, 73; People v. Fancher, 1 Hun, 28; In re Curley, 34 Iowa, 185; Hammond v. People, 93 Ill., 89; In re Blair, 4 Wis., 526; Perry v. Mc Lendon, 62 Ga., 601; Ex parte Pattison, 56 Miss., 162; Weddington v. Sloan, 15 B. Mon., 152.”

Unquestionably the matter may be regulated by statute provided the statutory regulations do not infringe upon the constitutional right to the writ. But the clear intention of our statute is to preserve the right to repeated *405 applications. By subdivision 4, of Section 1264, Rev. Stat., it is provided that the petition for the writ must state 11 that the legality of the imprisonment has not already been adjudged upon a prior proceeding of the same character to the best knowledge and belief of the applicant, or if so previously adjudged upon, setting forth as fully as practicable, the facts of such previous hearing, with a copy of all the papers connected therewith, or a satisfactory reason for the absence of such copy or copies.”

If a former adjudication is to bar a second writ, the latter part of the subdivision providing for setting out the facts of such former hearing is useless and absurd, and in reason it must be presumed that the subdivision would end with the requirement that the petition should state that there had been no such former adjudication. The same considerations apply to subdivision 5 of the same section; “ It must also state whether application'for the writ has been made to and refused by any court or judge, and if such application has been made, a copy of the petition in that case, with the reasons for the refusal thereto appended, must be produced, or satisfactory reasons given for the failure to do so.” The requirement that the facts of such previous hearing or the reasons for such refusal, must be set out, necessarily implies the power and the duty of the court or judge, to whom the second application is made, to consider and pass upon the facts of such previous hearing or the reasons for such refusal. These sections are also especially' persuasive of this view in connection with the fact that no other method of review is provided for in the act itself. And this conclusion is further fortified by the fact that the act provides in what cases the writ may be refused, and those in which a former adjudication has been had is not one of them. But it is permitted to be refused only when the application is made to a more remote court or judge and no sufficient reason stated for not making the application to the more convenient court or judge; *406 or, when upon the showing of the petitioner the plaintiff would not be entitled to any relief. The statute does not authorize the refusal of the writ in any other cases. The habeas corpus act, in the arrangement of our statutes, is not included in the division of the code of civil procedure entitled ‘ ‘ Special ■ Proceedings, ’ ’ nor is it incorporated in the code at all as is done in some of the States. The act, which was adopted under the Territorial government, attempted to confer jurisdiction of the writ also upon the probate judges. They were not ordinarily persons learned, or alleged to be learned, in the law; and á construction of the act which would make their judgments final in so vital a matter, involving the • constitutional rights and the personal liberty of the citizen, or at the best, to make a review of their judgments dependent upon the doubtful application of the provisions of the civil code to the subject, would expose the lawmaking power of the Territory to the charge of enacting rash and ill-considered legislation. By Section 3, Article 5 of the constitution, this court has original jurisdiction in habeas corpus, and each of the judges is given power to issue the writ and make it returnable before himself or the supreme court, or any district court of the State, or any. judge thereof.

In view of all these considerations; the evident purpose of the constitution that the writ shall be conveniently obtained shown in conferring original jurisdiction upon all courts and judges of the State; the provisions of the statute itself; the office of the writ, to furnish to the citizen summary relief where he is unlawfully deprived of his liberty; the failure of the habeas corpus act to provide for any proceedings in error and the entire inadequacy of such proceedings in many cases; and the prevailing opinion and practice of the courts of the country where the matter is not otherwise regulated by statute; we think' the power and duty of this court and its judges to consider such second applications and in proper cases to issue, and have a hearing upon, the writ, can not be seriously questioned.

*407 Moreover, if there should be an exercise of the jurisdiction in any case, it should he in one like this, where the petitioner is imprisoned in execution of a sentence, claimed to be illegal because of a denial of a constitutional privilege. Brown on Jurisdiction above quoted further says: “ The Constitution of the United States provides * * * that no person shall be subject for the same offense to be put twice in jeopardy of life and limb; nor be compelled to give evidence against himself. Each State constitution has similar provisions; and, if not, the United States Constitution would be binding on the courts, and a trial by a different method than that prescribed by it would be a nullity and the judgment void. The refusal of the court to grant each of the rights above enumerated or all of them goes to the jurisdiction; and if the court has jurisdiction to try the action, it seems to lose jurisdiction once acquired, by a disobedience of the mandates of the constitution; or, rather, the trial ceases to be a legal trial by a deviation from this course. Therefore, when any constitutional right or immunity of a person is violated, the judgment of the court is void. The Supreme Court of the United States, in a recent case, say: “It is difficult to see why a conviction and punishment under an unconstitutional law is more violative of a person’s constitutional rights than an unconstitutional conviction under a valid law.” Under this rule if a court errs in assuming jurisdiction where it does not possess it, or in interpreting a constitutional immunity or right secured thereby against the prisoner, or in refusing him a constitutional right, the jurisdiction over him ceases and its acts are not simply erroneous, but void. Therefore, it may be laid down as a rule of law, that the error of a court in construing any constitutional immunity or right in a criminal case against the accused is as fatal to the judgment as assuming juris- • diction originally where the court had none. Error in either case destroys the power to render any valid judgment, and if rendered it is not simply erroneous, but void.” Brown on Jurisdiction, Sec. 97. This statement pf the law seems to be applicable equally to a witness im *408 prisoned in denial of his claim of a constitutional right, for he is the defendant in the contempt proceedings.

There was formerly much controversy whether, and to what extent, the judgment of a court imprisoning a person for contempt could be collaterally attacked by means of the writ of habeas corpus.

The writ is not in the nature of, nor is it to be used as a substitute for, proceedings in error. A finding of decision of the inferior court, no matter how erroneous, if it does not affect its jurisdiction, is not subject to attack in this collateral proceeding. The office of the writ is to determine the legality of the particular imprisonment, and the facts to be considered in determining that question are jurisdictional facts. If upon a consideration of such facts, it appears that the court exceeded its jurisdiction • in making the order, the petitioner will be discharged upon habeas corpus, and it is not material that, the questions might have been brought to this court by petition in error. In re Boulter this court issued the writ and carefully considered all the points presented, although, as the court say, < ‘ They might all have been raised by proceedings in error without resorting to habeas corpus. ’ ’ 5 Wyo., 329. The distinction is tersely stated in Neilson, Petitioner, 131 U. S., 184. “The distinction between the case of a mere error in law and of one in which the judgment is void is pointed out in ex parte Siebold, 100 U. S., 371, 375, and is illustrated by the case of ex parte Parks as compared with the cases of Lange and Snow. In the case of Parks there was an alleged misconstruction of a statute. We held that to be a mere error in law, the court having jurisdiction of the case. In the cases of Lange and Snow there was a denial of a constitutional right. ’ ’

Our habeas corpus act provides, “ It is not permissible to question the correctness of the action of a grand jury in finding a bill of indictment, or a petit jury in the trial of a cause, nor a court or judge when acting in their legitimate province, and in a lawful manner,” There are *409 similar provisions in the legislation of most of the States. It being a common law writ, the right to which is secured to us by our constitution except when in case of rebellion or invasion the public safety may require its suspension, it is not to be supposed that the purpose of the statute was to attempt to detract from its force or curtail its operation, but it is intended as a mere declaration of the common law. It being a constitutional right, the statute would be ineffective except to declare the law, or regulate the method of its enforcement. It was never questioned that the jurisdiction of the committing court over the subject matter and the person of the applicant might be inquired into in this way. But under many of the earlier rulings the power of the court to go beyond this and inquire into the jurisdiction and power of such court to render the particular judgment was denied, when the court was shown to have general jurisdiction of the subject matter and of the person of the petitioner. But the later decisions seem to take a different view. In Church on Habeas Corpus, Sec. 362, it is said: “The decisions of the courts are not uniform or harmonious on this point, but the later decisions of very high authority go to show that jurisdiction of the person and of the subject matter are not alone conclusive; but that the jurisdiction of the court to render the particular judgment in question is a proper subject of inquiry. ” In Brown on Jurisdiction, before referred to, under the heading, “LThe three essential elements necessary to render conviction valid,” it is said: “These are, that the court must have jurisdiction over the subject matter, the person of the defendant, and authority, to render the particular judgment. If either of these elements are lacking, the judgment is fatally defective.” Sec. 110. And it is said in People ex rel Tweed v. Liscomb, “ If a process good in form issued upon a judgment of a court having jurisdiction, either general or limited, must in all cases be assumed to be valid until the judgment be reversed upon error, the remedy by writ of habeas corpus will be of little value.” 60 N. Y., 570.

*410 Many of the earlier decisions have refused to discharge upon habeas corpus under the rule that only questions of jurisdiction could be considered, and that when the committing court had jurisdiction of the subject matter and of the person the judgment was conclusive. Others, while professing to adhere to the same rule, have gone beyond it, and, though the jurisdiction of the committing court over the subject matter and of the person was admitted, have gone into the question of the power of the committing court, under the facts of the case, to render the particular judgment. Thus it is said in a California case: “ Of course where a court has jurisdiction of the subject matter and the parties, its judgment is not reversible upon such process. Being conclusive, courts will not go behind it to ascertain whether any errors of law were committed in the proceedings in which it was rendered.” After stating the principle thus the court, however, immediately proceed to'say: “But the judgment is not conclusive upon the authority of the court that rendered it. That, as well as any other matter which would render the proceedings void, is always open to inquiry. It were a legal absurdity to say that a judgment of conviction, valid in form, precluded all inquiry into authority to render it. In Ex parte Kearney, 55 Cal., 212, this court went behind the judgment of the police court of San Francisco, to determine whether the act of which the petitioner in that case was convicted, was a criminal offense known to the law, and having reached the conclusion that it was not, we held the judgment of conviction absolutely void. As was said in that case: “ Whenever a court undertakes to imprison for an offense to which no criminality is attached, it acts beyond its jurisdiction. Nearly a hundred years ago, the author of Bacon’s abridgment thus expressed the same doctrine: “If the commitment be against law, as being made by one who had no jurisdiction of the case, or for a matter for which by law no man ought to be punished, the courts are to discharge. ’ ’ Ex parte Hollis, 59 Cal., 407, And ini that case, it being a *411 commitment for contempt, the court held that the jurisdiction of the court to punish and imprison for such an offense was reviewable by the supreme court on habeas corpus, or on certiorari, and on appeal.

It is aptly said in Ex parte Degener, 17 South Western, 1113 (Texas Appeals), “ But jurisdiction is of two kinds, first, the power to hear and determine the particular matter, and to render some judgment thereon; and secondly, the power to render-the particular judgment which was rendered. The idea of the early courts seems to have been that jurisdiction of courts consists entirely of the former of these powers.” In Neilson, Petitioner, 131 U. S., 184, it is said, “A party is entitled to a habeas corpus not merely where the court is without jurisdiction of the cause, but where it has no constitutional authority or power to condemn the prisoner.”

In a Washington case the prisoner was committed for a failure to pay certain costs adjudged against him as the prosecuting witness in a criminal prosecution. The supreme court on original application for habeas corpus decided that the prisoner was detained for a cause not recognized by the law as ground for the judgment of imprisonment, and therefore not within the possible jurisdiction of any court. In a former case they had held that the courts were precluded from inquiring further when it appeared that the petitioner was committed by a court of general jurisdiction in pursuance of its final judgment for a crime triable by such court. Referring to their decision in that case they say: “As applied to that case enough was said; but in this one the qualification that the cause was triable by the court must be extended to cover the condition, that the court’s judgment was one which, under the law, it had jurisdiction to render.” And they further say that the petitioner was not estopped to maintain the habeas corpus proceeding, by the fact that he might have appealed from the judgment against him. In re Permstick, 3 Wash., 674.

And we think this is the tenor of authority at this time. *412 The acts constituting the alleged contempt are to be examined to ascertain whether in law they constitute a contempt, for if they do not the court was without jurisdiction to imprison, and the petitioner is entitled to be discharged on habeas corpus.

In Michigan under the constitutional provisons similar to our own there was a statute providing that no court or officer, on the return of any habeas corpus or certiorari, should have power to inquire into the justice or propriety of any commitment for a contempt made by any court or officer according to law and charged in such commitment as therein provided. In a habeas corpus proceeding the supreme court of that State held that they had authority to inquire into the justice or propriety of proceedings in contempt, only so far as to ascertain whether the court or officer had jurisdiction and was proceeding according to law. But they say “ the' question of jurisdiction necessarily involves an inquiry whether the conduct alleged was in fact a contempt of court and committed under circumstances which authorize the court to proceed to punishment therefor.” In re Wood, 82 Mich., 81. In a Texas case where the witness was committed for refusing to answer, it is said: ‘ ‘ The legality of the commitment, however, depends upon the power or jurisdiction of the court to ask the question. If the question be ‘ improper, ’ if the court interrogate a witness about a matter over which it has no jurisdiction, and about which it has no right to inquire, the refusal of the witness to answer the interrogatory is no contempt of court, and any order or decision which punishes the refusal to answer as a contempt, is void.” Holman v. Mayor, 84 Tex., 668.

In ex parte Irvine and Wagoner the petitioners were called as witnesses for the prosecution upon the trial of twelve defendants upon an indictment for a conspiracy to commit an offense against the United States. The petitioners refused to answer certain questions propounded to them on the ground that it might tend to incriminate them. The court decided that the answers to the ques *413 tions could not possibly criminate them, and upon their continued refusal committed them to jail for contempt: Writs of habeas corpus were sued out before the Circuit Court of the United States, and in considering the question how far the court might look beyond the commitment and its recitals into the evidence and circumstances upon which the committing court acted, the court say: “ The duty of this court to examine into and consider the facts upon which the trial court acted in committing the petitioners can not be doubted. If the petitioners, in their refusal to answer the questions, were within the protection of the fifth amendment to the Constitution, the power of the court to commit them for their refusal was exceeded, and the invalidity of the commitment may be declared in this collateral inquiry.” Ex parte Irvine, 74 Fed., 954.

In Iowa the petitioner was subpoenaed to come before a justice of the peace to make an affidavit under the provisions of a certain statute. He refused to appear or testify and was committed by the justice for contempt. On habeas corpus a majority of the court' held that he was properly committed, Justice Beck dissenting. But upon the proposition under consideration the court seem to have been substantially in harmony. The majority opinion states it thus: “We can not in a habeas corpus proceeding review the order of imprisonment for contempt, and reverse, unless the act constituting the alleged contempt was such that we can pronounce as a matter of law that it was not a contempt.- If for instance the justice had no authority to subpcena this plaintiff, and was acting without jurisdiction in doing so, then what he did was done merely as an individual, and whatever contempt there was, if it could be called such, not being for judicial authority, would not be such as the law recognizes and punishes. ’ ’ In the dissenting opinion it is thus stated: “Tribunals may decide all questions touching their jurisdiction, but their decisions supporting their jurisdiction are not conclusive, and judgments rendered *414 without jurisdiction may be assailed either directly or collaterally. The decision of a court that an act is a contempt is a decision as to its jurisdiction and may be questioned in any collateral proceeding. It may, of course, be assailed upon habeas corpus, which is the very proceeding provided by the law whereby the legality of the imprisonment of a citizen may be determined.” And the majority of the court in announcing their decision at the close of their opinion fully recognize the principle. They say: “ Having reached the conclusion that the justice was not without jurisdiction in issuing the subpoena, and that there was a contempt in fact, we think that this disposes of the case.” State ex rel Whitcomb v. Seaton, 61 Iowa, 563.

In a later case under the same statute the petitioners refused to obey a subpoena, or to testify, and were committed for contempt. By a unanimous court it was decided that the evidence sought was not of a character contemplated by the statute, that the justice was without authority to issue the subpoena, that the petitioners were illegally committed, and they were discharged. Dudley v. Mc Cord, 65 Iowa, 671.

The doctrine thus stated, that in commitments for contempt, and in other cases of alleged illegal imprisonment, the court on habeas corpus may inquire into the power of the committing court to make the order, by investigating the question whether the facts constitute a contempt, or in any case whether the facts confer jurisdiction upon the court to make the particular order, and if they do not, to discharge, is, as we believe, sustained by the great mass of the later cases, either in express terms, or tacitly, by acting upon it. We cite a few of the great number bearing upon the question. In re Dill, 32 Kan., 668; People v. Hackley, 24 N. Y., 75; Ingle v. State, 6 Blackf., 574; ex parte Senior, 19 South. (Fla.), 652; ex parte Gould, 35 Pac. (Cal.), 1112; ex parte Rowland, 104 U. S., 604; ex parte Lange, 18 Wall., 163; ex parte Kellogg, 64 Cal., 526; in re Sontag, 64 Cal., 526; Robb *415 v. McDonald, 29 Iowa, 672; ex parte Siebold, 100 U. S., 375; ex parte Mirande, 73 Cal., 371; ex parte Kearney, 55 Cal., 214; ex parte Fisk, 113 U. S., 718; in re Rolfe, 30 Kan., 751; ex parte Parks, 93 U. S., 18; ex parte Virginia, 100 U. S., 339; Cooper v. People, 13 Colo., 353; ex parte Ellis, 37 Tex., Cr. App., 542; ex parte Tinsley, 37 Tex., Cr. App., 527; ex parte Park, 37 Tex., Cr. App., 590; People ex rel Taylor y. Forbes, 143 N. Y., 219; ex parte Webb, 51 Pac., 1027 (Nev.); in re Patzwold (Okla.), 50 Pac., 139; Mallory v. Benjamin, 9 How. Pr., 421; Counselman v. Hitchcock, 142 U. S., 547; ex parte O’Brien, 30 S. W. (Mo.), 159; Dinsmoor v. Bressler, 164 Ill., 223.

When and under what circumstances a witness shall be protected in refusing to answer upon the ground that his answers may tend to criminate him has been very often considered, but is necessarily dependent in a great measure upon the facts of each case. The provision of our constitution is that “no person shall be compelled to testify against himself in any criminal ease.” Sec. 11, Art. 1. It has been held in some cases that the“privilege does not apply except to the defendant in a criminal case; that the term ‘ ‘ criminal case ’ ’ can only mean a prosecution for a criminal offense, and that the prosecution must be' against him. This view, after a thorough consideration, was rejected in the leading case of Counselman v. Hitchcock, 142 U. S., 547; and we do not understand that it is contended for in this case. “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.”

Neither is it necessary in order to claim the privilege, that the answer, unconnected with other testimony, should be sufficient to convict him of crime. As said by Chief Justice Marshall in Burr’s trial: “This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony which is necessary *416 to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible but a probable case, that a witness by disclosing a' single fact may complete the testimony against himself; and to every effectual purpose to accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing, but all other facts without it would be insufficient. While that remains concealed within his own bosom, he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself, would most obviously be infringed, by compelling a witness to disclose a fact of this description. What testimony may be possessed, or is obtainable, against any individual, the court can never know. It would seem, then, that the court ought never to compel a witnéss to give an answer which discloses a fact that would form a -necessary and essential part of a crime which is punishable by the laws.” It has been held' that where a prosecution for the offense is barred by the statute of limitations the privilege does not exist. There are also statutes of the United States and many of the States providing that evidence thus elicited shall not be used against the witness in any prosecution against him, or that he shall not be prosecuted for any matter concerning which he may testify. There is' no statute of limitations as to crimes in this State, and we have no statute attempting to confer immunity upon a witness in any case. So that we have only the constitutional provision itself to consider as applied to the facts of the case before us.

It is contended by counsel for respondent, first, that it does not sufficiently appear that an answer to the question would tend to criminate the petitioner; that, quoting from Wharton’s Crim. Ev. (ninth ed.) 466 “there is no answer which a witness could give which might not be *417 come part of a supposable concatenation of incidents from which criminality of some kind might not he inferred,” that the witness in this case was simply called upon by the questions to state the facts constituting the offense with which the defendant stood charged and for which he had been arrested at the instance of the witness himself; and that the witness can not be permitted to be the exclusive judge whether the answer will criminate him and thus protect a defendant from merited punishment.

It is apparent that these considerations are of the utmost weight as affecting the- proper and efficient administration of the criminal law, and it is of primary importance that the rule by which the court is to determine whether the privilege of the-witness shall be allowed shall be correctly ascertained. Quoting again from the section of Wharton above referred to: “To protect a witness from answering, it must appear from the nature of the evidence which the witness is called to give that there is reasonable ground to apprehend that should he answer he would be exposed to a criminal prosecution. ’ ’

In Burr’s trial Judge .Marshall, in stating the rule, said, “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 can not participate with him in this judgment, because they can not decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims. * * * In such a case, the witness must himself judge what his answer will be; and if he say, on oath, that he can not answer without accusing himself, he can not be compelled to answer.” 1 Burr’s Trial, 244, 245.

It is urged in this case that the witness had already *418 made a statement inquired about by the question propounded, and that to rehearse them as formerly stated, which he must do to make a true answer, could not by any possibility incriminate him. But independently of the consideration, to be adverted to more fully hereafter in this opinion, that subsequent acts of the witness, such as compounding the felony, might have intervened changing his attitude in the premises, we think none of the authorities claim any power in the court to determine what the answer shall be. That, from the nature of the case, and of necessity, is in the breast of the witness.

The rule above referred to by which the court must be governed in allowing or denying the privilege is variously stated, but, we think, with substantial harmony. In Richmond v. The State, 2 Iowa, 534, a case relied on by counsel for respondent, the court say: ‘‘When it is evident to the mind of the court that the answer can not accuse the witness, the court should require him to respond to the interrogatory. * * * Therefore, we think, the better and safer rule to be that of compelling a witness to answer when it is apparent to the court that such answer would not interfere with his legal privilege. ’ ’ And Judge Marshall, in Burr’s trial, supra, summarizes the rule thus: “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 testimony 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 can not answer without accusing himself, he can not be compelled to answer. ’ ’

The rule is more strongly stated by some of the other cases. As, for example, in re Tappan and Douglas,. 9 How. Pr., 395, the court say: “ The witness alone knows the facts beyond those to be contained in the answer, which may tend to his conviction; the court is not to com *419 pel him to tell what those facts are. If, therefore, he says that the answer may tend to convict him, and on that account refuses to answer, and the court can imagine any state of facts under which the answer might lead to such a result, the witness may insist on the protection of the law and refuse to answer.”

But we think upon reason and authority the more conservative statement of the rule should be adopted, as in Simmons v. Nolster, 13 Minn., 236: “ When it reasonably appears that the answer will have a tendency to expose the witness to a penal liability, or to any kind of punishment, or to a criminal charge, ‘ the authorities’, says Greenleaf, ‘ are exceedingly clear that the witness is not bound to answer.’ 1 Greenleaf Ev., Sec. 451.”

We think the opinion of Judge Taft in ex parte Irvine, 74 Fed., 954, 960, states the rule very clearly: “The great weight of authority, as well as a due regard for the right of the community to have the wheels of justice unclogged, as far as may be consistent with the liberty of the individual, leads us to reject the doctrine that a witness may avoid answering any question by the mere statement that the answer would .criminate him, however unreasonable such statement may be. The true rule is that it is for the judge before whom the question arises to decide whether an answer to the question put may reasonably have a tendency to. criminate the witness, or to furnish proof of a link in the chain of evidence necessary to convict him of a crime. It is impossible to conceive of a question which might not elicit a fact useful as a link in proving some supposable crime against a witness. The mere statement of his name or his place of residence might identify him as a felon, but it is not enough that the answer to the question may furnish evidence out of the witness’s mouth of a fact which, upon some imaginary hypothesis, would be the one link wanting in the chain of proof against him of a crime. It must appear to the court, from the character of the question, and the other facts adduced in the case, that there is some tangible and *420 substantial probability that the answer of the witness may help to convict him of a crime.”

Keeping in view this rule and the principle that the court can not compel the witness to disclose what crime the answer would tend to convict him of, as such disclosure would defeat the very object of the constitutional privilege, we proceed to an examination of such facts as appear upon the question. The charge of obtaining the sum of $1,130 from the plaintiff by false pretenses had been preferred against the defendants at plaintiff’s instance. They had been returned from Colorado by a requisition obtained upon his affidavit. At the time set for their preliminary examination the plaintiff failed to appear as a witness. It was again set dawn, and the plaintiff again failed to appear, although he had been duly subpoenaed. Thereupon an information was filed against the plaintiff charging him with compounding the felony of which the defendants were accused, and an attachment issued to bring the plaintiff before the justice as a witness in the preliminary examination of the defendants. The statute prohibiting the compounding of a felony provides that 1 ‘ whoever, having knowledge of the actual commission of a crime of the grade of felony, takes any money or property of another, or any gratuity or reward, or any engagement or. promise therefor, upon any agreement or understanding, express or implied, to compound or conceal such crime, or to abstain from any prosecution therefor, or to withhold any evidence thereof, or do any act to encourage or procure the absence of witnesses or other testimony on the examination or trial of such charge, is guilty of a felony and shall be punished,” etc., prescribing imprisonment in the penitentiary.- (Laws 1890, 142.)

The information filed by the prosecuting attorney charging the petitioner, with compounding the felony, first sets out the commission of the felony, as in the original information, and then proceeds to state that the petitioner “ then and there having knowledge of the actual commis *421 sion of the felony aforesaid by the said Oliver 0. Hongh, alias Clifford W. Lang, did then and there feloniously take and receive from the said Oliver C. Hough, alias Clifford W. Lang, eleven hundred and thirty dollars * * * upon the express agreement and understanding then and there to feloniously compound said felony and conceal its commission. ’ ’ It therefore appears that when the witness was called upon to state from his own knowledge the facts constituting the guilt of the defendant Hough, he was thereby required to testify to the first and essential fact necessary to his own conviction, viz.: his “knowledge of the actual commission of the felony aforesaid;” and at the same time to supply the proof, and probably the only available proof, of the equally essential fact in the prosecution of himself, the commission of the. original felony. Adopting then Wharton’s statement of the rule, it appears from the nature of the evidence which witness was called upon to give that there was reasonable ground to apprehend that, should he answer, he would be exposed to a criminal prosecution. It can make no difference that the information against the petitioner had been dismissed. It was made under oath by the proper officer, it is not to be presumed that it was made without some basis of evidence tending to support it, and the dismissal would in no way interfere with a future prosecution. It is also urged that evidence thus extorted could not be subsequently used against the plaintiff in any prosecution against him, and that the petitioner is therefore protected. But the constitutional privilege is that the evidence shall not be extorted. It is not that such testimony shall not be used against him, nor that he shall not be prosecuted for a crime concerning'which he has been required to give testimony tending to incriminate himself, but that he shall not be compelled to testify. The principle that evidence obtained by a violation of this privilege can not be used against him was never intended to authorize or excuse a violation of such privilege. And, as before remarked, we have no statute which attempts to *422 substitute immunity from the consequences. of a violation of the privilege, for the privilege itself.

It is insisted that the affidavit made by the plaintiff in the requisition proceedings shows that his refusal to answer and his claim of privilege was not made in good faith. We understand that counsel do not contend that the privilege of the witness was waived by making the statements contained in the affidavit. Indeed, the authorities are clear upon the proposition, that previous-sworn statements in or out of court do not constitute a waiver and do not deprive the witness of his constitutional privilege when he thereafter claims it. In Emery v. State, 78 N. W., 145, the supreme court of Wisconsin said: “The fact that a witness made previous self-incriminating statements in court on some other trial, or out of court, made no difference. The immunity was complete unless waived by the witness with knowledge of his rights. That right exists under our system of constitutional guaranty to the fullest extent, and is to be protected as rigidly and fairly as any other constitutional right, and not to be weakened or impaired by inventing new methods or ways of evading it.”

In a Georgia case it was argued that as the witness had voluntarily testified, at a previous trial, as to the very matters concerning which he had at the later trial chosen to remain silent, he had waived his privilege; but the court rejected the proposition, saying, “The fact that Lybrend (the witness) had made the waiver at a former hearing before a different jury, and under circumstances necessarily to a greater or less extent unlike these surrounding the last trial, did not preclude him from exercising his privilege at a later stage of the case. He may, on one occasion, have had reasons for speaking out which were entirely satisfactory to himself; and on the next he may have been influenced to keep silent by other reasons which were, in his opinion, equally cogent. These were matters for himself alone to determine. The privilege is in the highest degree personal, and is a sacred one, which the courts should jeal *423 ously guard.” Georgia R. R. Co. v. Lybrend, 99 Ga., 421.

In Temple v. Commonwealth, 75 Va., 892, it was held that the'fact that the witness testified before the grand jury, and that it was on his testimony that the indictment was found, will not deprive him of his privilege to decline to testify on the trial of the party indicted.” See also Cullen v. Com., 24 Grat., 624, to the same effect.

In Illinois the witness who claimed the privilege had instigated the prosecution and had made a sworn statement upon the back of the information to the effect that the allegations thereof were true, yet his conduct was held not to amount to a waiver of his constitutional privilege when called as a witness upon the trial of the accused. In that case the court said: “The privilege which a witness has. of refusing to give evidence which will criminate himself, is granted to him upon grounds of public policy, and is one of the safeguards of his personal liberty. It can not be regarded as released or waived by some disclosure which he may have made elsewhere and under other circumstances. If the answer to a question put to him as a witness upon the stand might tend to criminate him, it would not tend any the less to do so because he had elsewhere made a statement having such tendency. The question is not as to what he may have previously said in an affidavit, but the question is whether the disclosure he is asked to make as a witness upon the trial of the case will have a tendency to expose him to criminal charge or penalty,” and the court added: “We are of the opinion that his constitutional right in this regard is not abridged or waived by the fact of making the ex parte affidavit indorsed upon the information filed by the prosecuting attorney.” Samuel v. People, 164 Ill., 379.

In this case, however, the crime of compounding a felony, if committed by the witness, must have been committed after the affidavit in the requisition proceedings had been made, and the latter, therefore, can hardly throw much light upon the question of his good faith in declining to testify upon the subsequent trial.

*424 There seems, however, to be some misconception regarding the question of good faith. The question is not whether the witness has been in good faith with the prosecution throughout the case. It is rather whether his refusal to testify is really and sincerely dictated by a belief that his answers will tend to criminate him. In the case of ex parte Irvine, supra, Judge Taft lays down the rule upon this branch of the case which seems to us to be the correct one. He says: “We do not understand any of the American authorities to go so far as to hold that where, from the evidence and the nature of the question, the court can definitely determine that the question, if answered in a particular way, will form a link in the chain of evidence to establish the commission of a crime by the witness, the court should inquire into the motive of the witness in pleading his privilege. It is only where the criminating effect of the question is doubtful that the motive of the witness may be considered, for in such a case his bad faith would have a tendency to show that his answer would not subject him to the danger of a criminal prosecution, or help to prove him guilty of a crime.”

In the Irvine case it was argued by counsel that the privilege was pleaded merely to shield the defendants on trial. The court, however, held that the witness was entitled to the privilege insisted on. That case makes the proposition entirely clear that when the court can determine from the circumstances and nature of the question that the question is incriminating in character, there is then no question of good or bad faith to be considered.

It is suggested that to permit a witness to refuse to testify under such circumstances would be to place the administration of the criminal law in the hands of witnesses, often-influenced by improper motives, thus making convictions difficult and often impossible. It is perhaps sufficient to say that the principle is not a new one. “ It is an ancient- principle of the law of evidence that a witness shall not be compelled, in any proceeding, to *425 make disclosures or to give testimony which will tend to criminate him, or subject him to fines, penalties, or forfeitures.” Counselman v. Hitchcock, 142 U. S., 547. Citing a number of English cases.

It is said by Starkie to be based upon two grounds, one of policy and one of humanity: “Of policy because it would force a witness under a strong - temptation to commit perjury, and of humanity because it would be to extort a confession by duress, every species and description of which the law abhors.” Stark. Ev., 40, 41. It long antedates our constitution or the Constitution of the United States. It has been acted upon in the courts of this country and England for a great many years, and no such disastrous consequences in the administration of the criminal law have ensued. In practice it has been found that the privilege is .very rarely claimed, and the claim is guarded against abuses as carefully and effectually as the exercise of any other of the unquestioned constitutional rights of the citizen. It must be made under oath and the penalties of perjury attach as in other cases of false testimony if it is not made in good faith; and the witness is not the final judge whether the privilege exists in the particular case, but the decision is to be made by the court. But that it may be abused is not an argument which this court is at liberty to consider, further than to guard against such abuses as far as consistent with the maintenance of the right itself. It is imbedded in the constitution and embodies the wisdom of some centuries of experience upon the subject, and there is no temptation for us to evade or amend it by reason of any considerations of convenience or necessity. The cases of fancied necessity, if there were any relaxation of the principle, would. undoubtedly multiply under the pressure of officers and others naturally, and often very properly, eager for convictions, much' more rapidly than the cases, where the privilege is claimed, have done, under a full and complete, but just and careful, enforcement of the constitutional right.

*426 We are of the opinion that the imprisonment of the plaintiff is illegal, and that he must be discharged, and it is so ordered.

Potter, C. J., concurs, KNight, J., dissents.