I confess a fear that we have put into the statute more than the Legislature intended. We have, in effect, invested a legislative subpoena with the virtue of an antidote against criminal responsibility, and so charged the committee room with healing atmosphere that a brief exposure thereto will immunize the guilty against the pains of prosecution.
The statute was intended to do no more than protect a witness against criminal responsibility in respect of any crime or essential element thereof about which he may have been required to testify. This view leaves open the door of inquiry whether in a given case the disclosure was of a matter which might reasonably tend to incriminate the witness. Such is the import of all such statutes regardless of the variations in language. Wigmore, Evidence (3d Ed.) Sec. 2263.
There was no question asked appellant before the legislative committee which, even aided by imagination, could have tended to incriminate him or have furnished an essential link or a helpful clue in a later prosecution of appellant. No documents were introduced. The mere fact that the expression "thirty day permits" was employed during the brief inquiry is no more significant than that the witness gave his name — an indispensable element in any indictment. Consistency would immunize a witness against prosecution for murder by drowning by his *Page 904 chance reference to water. Abrams v. United States, 2 Cir.,64 F.2d 22.
The testimony of appellant before the committee could not and did not aid in its prosecution. His name and occupation were matters already known and were of public record. Thus is given point to the above conclusion that the mere status of appellant as a witness has been allowed automatically to immunize him. Attention is invited to Wigmore, op. cit. supra, Sections 2260, 2261, without further citation.
Finally the appraisement of the degree to which the answers tend to incriminate is not to be made by the witness but by the Court. Wigmore, op. cit., Section 2271. This can mean only that the issue for the Court is whether the disclosures are merely casual or formal or whether the witness has furnished necessary component parts of the legal weapon that is later turned against him. In other words, has he injured himself? By this test the appellant here emerged from the committee room unscathed by either accusation or suspicion. He has said nothing that could be borrowed for use in an indictment or testimony thereunder. His answers could have been found in a city directory. He has by his physical presence before the committee been coated with a film of insulation against criminal molestation from any source or for any act he may have committed while he bore the name he revealed and while he followed the lawful employment whose nature he condescended to divulge. The State had employed him to do exactly what he said he was doing. He may well be comforted in his extremity by the reflection that the Court has treated him with that "morbid delicacy" which Prof. Wigmore deplores. Emphasis is shifted from the tendency of testimony to incriminate to the tendency of courts to absolve.
The rationale of the immunity statutes is that in return for the furnishing by the witness of an essential element of a crime he is in return absolved from criminal responsibility to answer the completed crime. Yet if he gives *Page 905 nothing he ought to get nothing. If he has not helped the State, it is under no obligation to help him. If he withholds incriminating facts the State withholds immunity.
Between the extremes of a complete confession of guilt on the one hand and a perfunctory statement of irrelevant matters, there must be room for the play of the trial court's reasonable and practical appraisement of a witness' testimony by testing whether it would "inspire belief in a reasonable and unprejudicial mind that it points toward guilt and links up with the principal fact under investigation." Price v. Commonwealth, 296 Ky. 144,176 S.W.2d 271. See also Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Roberts v. State, 43 Ga. App. 108, 157 S.E. 887; People v. Mather, 4 Wend. 229, 252, 21 Am. Dec. 122; Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; Ward v. State, 2 Mo. 120, 22 Am. Dec. 449; In re Jennings, 154 Or. 482,59 P.2d 702; In re Schnitzer, 295 Mich. 736, 295 N.W. 478; People v. Robinson, 306 Mich. 167, 10 N.W.2d 817; United States v. Weisman, 2 Cir., 111 F.2d 260.
It would seem that we construed the statute into a facile device whereby the guilty may gain absolution without confession.
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