It appears from the petition that the minor, in whose behalf the petition is filed and the writ is sought, is seventeen years of age. The minor was called as a witness in the case of Stateof Utah v. James A. Kaddas, then pending and being tried in the District Court of the Third Judicial District of the State of Utah, Salt Lake County. James A. Kaddas was charged with the "crime of carnally and unlawfully knowing a female over the age of thirteen years and under the age of eighteen years," alleged to have been committed on the 27th day of July, 1938, — the said minor being the female.
To the charge the defendant had entered a plea of not guilty. At the trial one witness had been called on behalf of the state who had testified in substance that "on the early hours of the morning of July 27, 1938, he saw the minor lying on her back in the rear seat of an automobile in a reclining position with one leg upon the seat and her other leg upon the floor of said car with her clothes lifted to her waist; that the defendant James A. Kaddas was standing or kneeling over her with his pants unbuttoned and his private parts exposed." Following the testimony of this witness, and, as the only other witness, up to that time, *Page 293 the minor was called as a witness on behalf of the state and, being sworn, was questioned. After some preliminary questioning the witness was asked: "Did you have any sexual relations with the defendant on July 27, 1938?" To which question the witness replied, "No." Counsel for the prosecution then on behalf of the state asked the witness the following question: "Did the defendant James A. Kaddas have sexual intercourse with you at any time between July 4th, 1938 and July 27th, 1938?" To this question counsel for defendant interposed the objection of "immateriality, incompetency and irrelevancy."
The minor, represented by independent counsel, then refused to answer upon the ground urged by her counsel, claiming the constitutional and statutory privilege of remaining silent where her answer might tend to incriminate her and also degrade her upon a collateral matter. The trial court advised the witness that the ground of claimed privilege was not available to her, and that she would be required to answer the question or be punished for contempt. The witness still declined to answer upon the ground claimed. Whereupon the witness was adjudged in contempt of court and incarcerated until she might speak.
The record submitted to this court discloses that counsel for the state was not in a position to claim surprise, as it was shown that the state had a transcript of the witness' testimony taken at the preliminary hearing and had been advised that the claimed privilege would be asserted on the ground stated. The following colloquy is part of the record before us:
"Mr. Rogers: `Now he cannot claim surprise; that is the point we have been arguing about all the time.'
"The Court: `You say Mr. Romney knew what her testimony was at the preliminary hearing?' Mr. Romney: `I did, your Honor, and I have the transcript.'
"The Court: `You cannot indulge in the presumption that she would perjure herself here.'
"Mr. Romney: `I have her statement, your Honor, taken when this case was filed, that is entirely different from her testimony below; *Page 294 and counsel comes and says if she is required to testify here it will probably lay her open to a perjury charge; * * *'."
Other matters are shown by the petition and record, all of which are made part of the petition by reference. A demurrer was filed, thereby admitting the facts and making the issue one of law.
The state had alleged the offense had taken place upon the 27th of July, 1938, and had, before calling the witness, introduced testimony as to that date: Thus by election, it hadbound itself to that date. In State v. Hilberg, 22 Utah 27,61 P. 215, at page 34 of the Utah report, 61 P. page 216, the following occurs:
"The general rule in criminal cases subject to exceptions is well settled that, where one specific offense is charged, the commission of other offenses cannot be proven for the purpose of showing that the defendant would have been more likely to have committed the offense for which he was on trial, nor as corroborating the testimony relating thereto; but where the offense consists of illicit intercourse between the sexes, such as is charged here, or in case of incest, adultery, or seduction, courts have relaxed the rule, and hold that previous acts of improper familiarity between the parties, occurring prior to the alleged offense, were admissible as explaining the acts, and ashaving a tendency to render it more probable that the act chargedin the information was committed, though such acts would beinadmissible as independent testimony." (Italics added.)
The record discloses that when the question was asked to which claim of privilege was made, counsel for the defendant Kaddas interposed the general objection of immateriality, incompetency and irrelevancy. As the evidence of the case then stood that objection should have been sustained. Had such ruling been made, the necessity of claiming privilege would 1 not have arisen on the part of applicant for this writ. Whether the objection of relevancy or materiality should have been sustained resolves itself into a question of order of proof. Unless the state had other proof than that already produced it had failed to make even a prima facie case. The evidence of the officers showed *Page 295 contemplation and intention on the part of the participants to commit the act charged, but fell short of showing that it had taken place. Then, when the petitioner herein was asked on direct examination by counsel for the state whether the act had been committed on the date testified to by the officers, her answer was negative and the state was left without a case, unless other and further testimony was to be produced. Such matter may be a question of order or proof. In any event, before the petitioner was required to answer after claimed privilege, in the spirit of the privilege provided by statute it would have been in the interest of orderly procedure to have inquired whether the state had other independent testimony, and then determined whether the witness should be subjected to the humiliation of answering if her answer was affirmative; because, without more, had her answer been affirmative, the court would not have been justified in permitting such case to go to the jury. The most that could be said for the testimony as thus contemplated would have been that it permitted the weighing of a permissible inference against evidence showing an opportunity and a contemplated act and the negative testimony of the witness. The danger of permitting such situation going to a jury is that a defendant may be found guilty of an offense similar in character upon a different date, but not charged, or, if charged, excluded by the election the law makes upon the introduction of testimony as to the act proposed to be proved.
Aside from the foregoing question, should the witness have been required to answer or suffer contempt punishment after her claim of privilege? We are of the opinion her claim of privilege should have been allowed by the court. We need not discuss the history and development of the rule that no one is bound to become his own accuser, etc. Those interested 2 in a scholarly and detailed history of the principle will find such in a treatise by John H. Wigmore in 5 Harvard Law Review, beginning at page 71; and in 15 Harvard Law Review, beginning at page 610. *Page 296
The principle behind the statute is declared in Article 1, section 12 of the Constitution of Utah, where among other things it is stated: "The accused shall not be compelled to give evidence against himself." This applies as well, before indictment or information filed as afterward. In the instant case the witness is not the accused. This provision of the constitution is referred to only as it tends to form a background affecting the interpretation of the statute relating to the duty of witnesses to answer or affirm under oath and the right a witness has to claim privilege under the statute.
Section 104-49-20 of R.S.U. 1933 requires that:
"A witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it is to the very fact in issue or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction for a felony."
The extent of examination and limitations of the application of the last sentence of the statute just quoted is considered as relating to the testimony of the "accused" on direct and cross-examination in the case of State v. Crawford, 60 Utah 6,206 P. 717 (a robbery case). That part of the section contained in the opening statement thereof, viz., "A witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself," evidently relates to requirement to answer in civil cases. The second clause of the first sentence of the section provides that a witness "need not give an answer which will have a tendency to subject him to punishment for felony." This clause is general and gives protection to a witness against giving an answer in any event which will have a tendency to subject him to punishment for crime. We think this is the sense in which the word "felony" is used in this section, notwithstanding the fact the statutes divide crimes into two classes, — felonies and misdemeanors *Page 297 (R.S.U. 1933, 103-1-12); and that "A felony is a crime which is or may be punishable with death, or by imprisonment in the state prison" (R.S.U. 1933, 103-1-13). Under the same section, "everyother crime is a misdemeanor." (Italics added.)
The constitutional language is:
"The accused shall not be compelled to give evidence against himself."
Such language permits of no classification of crimes or otherwise that will require the "accused" to give evidence against himself, but opens the way to the common law privilege against self-crimination.
Do the constitutional and statutory provisions give the same protection to "witnesses" as to "accused" persons? The Supreme Court of Missouri, in discussing this general, and, in so far as states of the United States are concerned, uniform provision, and indicating the wholesomeness of the provision, says:
"The constitutional provision before us is, no doubt, quite inconvenient, in some instances, as a barrier to investigation of criminal conduct, but its larger value in expressing and enforcing a principle of individual right is thought to more than counterbalance such inconvenience."
And after referring to the position taken by the Supreme Court of the United States on the application of the Federal Constitutional clause, U.S.C.A. Const. Amend. 5, declaring that no person "shall be compelled in any Criminal Case to be a witness against himself," wherein one subpoenaed to testify before a grand jury was protected from making disclosures which might subject him to subsequent prosecution, the Missouri court, quoting further, said:
"The manifest purpose of the constitutional provisions, both of the states and of the United States, is to prohibit the compelling of testimony of a self-criminating kind from a partyor a witness." (Italics added.) State ex rel. Attorney General v. Simmons Hdw. Co., 109 Mo. 118, 18 S.W. 1125, 1126, 15 L.R.A. 676. *Page 298
This brings us to the remaining provision of the statute to the effect that a witness "need not give an answer * * * which will have a direct tendency to degrade his character, unless it is to the very fact in issue or to a fact from which the fact in issue would be presumed." The information 3 sought to be elicited by the question was not the fact in issue. The witness had testified negatively as to the fact in issue sought to be established. Was the fact sought to be elicited, to wit, an act of sexual intercourse prior to the time alleged in the information and as to which the state had elected to be bound, such fact that from it the very fact in issue would be presumed? We think this question must be answered in the negative. The testimony of the witness was not in conflict with any other testimony up to that time offered. The admission sought to be obtained from the witness would have been admissible had the state presented evidence establishing the fact in issue or independent evidence tending to establish such fact.
In the case of State v. Reese, 43 Utah 447, 135 P. 270, a bastardy case, this court said [page 278]:
"It may be proper upon cross-examination of the accused, if he denies having had sexual intercourse with the prosecutrix, to show his conduct and inclination toward the prosecutrix for a reasonable time prior to the alleged intercourse, but this is only proper as showing the probability of the alleged intercourse" (italics added),
after the prosecutrix had testified affirmatively as to the fact in issue. That certain evidence may tend to show probability may be sufficient reason to make it admissible in the sound discretion of the court. But to say that an act of sexual intercourse at a previous time shows such probability that the very fact in issue or a fact from which the fact in issue would be presumed confounds a rule of admissibility of evidence with a statutory provision exempting a witness from degradation of character, humiliation, or embarrassment, aside from the fact the answer if true might *Page 299 also have a tendency to subject him to punishment for a crime.
Law not based upon sound morality cannot in an enlightened and progressive state endure. Usually the higher the moral standards and ideals, and the broader virtue's foundations, the fewer are the occasions for penal regulations. Sexual purity has since time out of mind been the concern of all interested in moral codes and legal inhibitions aimed to aid in the maintenance of that purity. Promiscuous sexual relations undermine the standards of life and are not only always immoral under an advanced civilization, but are also illegal — although there may be instances when one of the parties concerned in the breach may for other reasons go unpunished legally. As aptly put in the State v. Reese Case, supra:
"An unlawful sexual act, other than rape, is by our statute made a crime and can be punished as such."
More might be cited and said upon the foregoing propositions. We now pass to a difficult question. Must a competent witness, even though a minor, testify to facts or occurrences which would have a direct tendency to degrade her character when the question does not go to the very fact in issue or to a fact from which the fact in issue would be presumed; or, must a witness, though a minor, give an answer which may have a tendency to subject such witness to punishment for crime?
It has been heretofore indicated that in the instant case, had the answer been what it may be presumed the prosecutor desired or expected it to be, still such answer would not have furnished proof of the very fact in issue or such a fact as would have permitted either court or jury to find or presume from it the very fact in issue.
The witness was a seventeen year old female. When she passes her eighteenth birthday, assuming that occurs before the statute of limitations has run, may she then be prosecuted for fornication or lewdness or other sexual offense? *Page 300 The acts of a fornicator or a lewd or lascivious person are the same whether a statutory penalty is affixed or not, and the same degradation attaches whether prosecuted or not. It may be noted that until 1935 unlawful cohabitation, as defined by the Utah Statutes, related only to males. Unlawful cohabitation was an act of mutuality of the parties participating. By an amendment, Laws of Utah, 1935, Chap. 112, unlawful cohabitation applies to "any person" who cohabits "with more than one person of the opposite sex." This amended statute is not strictly pertinent, but is interesting and instructive.
In carnal knowledge cases and some other illicit sexual offenses the co-respondent is not an accomplice. The question of accomplices and a number of cases relating thereto have been cited and argued. The question of accomplice is not involved in this case and the question of privilege or want of it is not based on that ground.
It is argued that because a female under the age of eighteen years and over the age of thirteen years is not guilty of certain sexual offenses and is subject to juvenile court jurisdiction, that such female is incapable of consenting to a sexual act. There are numerous authorities that contain language susceptible of the application contended for, if not directly so stating the proposition. Such language forces a distinction between legal consent and intellectual consent.
"All persons are capable of committing crimes, except those belonging to the following classes: (1) Children under the age of seven years. (2) Children between the ages of seven years, and fourteen years, in the absence of clear proof that at the time of committing the act charged against them they knew its wrongfulness. * * *" R.S.U. 1933, 103-1-40.
Seven other classes of persons are named; none of which refer to persons between the ages of fourteen and eighteen years, unless such persons fall within the classes named — such as idiots, lunatics, etc.
"The following persons are liable to punishment under the laws of this state: (1) All who commit, in whole or in part, any crime within this state * * *" R.S.U. 1933, 103-1-41. *Page 301
The following headnote reflects the holding of a case:
"The statute fixing the age of consent does not render a girl under that age incapable of committing a sexual crime, so as to deprive her, of the constitutional privilege of refusing to answer questions relating to such crime which will tend to incriminate her." Ex parte Grace Nesson, 25 S.D. 49,125 N.W. 124, 27 L.R.A., N.S., 872.
There are illustrations and comments in the opinion pertinent to the summary above quoted.
The better interpretation of this matter of consent of females under eighteen years of age is stated in the case of State v.Learned, 73 Kan. 328, 85 P. 293:
"The inquiry then arises, can a girl under the age of 18 years consent to the act of sexual intercourse, with one within the degrees of relationship within which marriage is incestuous and void, and thus become guilty of incest? If not, why not? There is no statutory provision and no common-law rule to the contrary. Section 2016, General Statutes of 1901, commonly called the age of consent law, simply provides, `every person who shall be convicted of rape, either by carnally and unlawfully knowing any female under the age of 18 years or,' etc. This does not disqualify the female under 18 years from consenting, but provides, in effect, that her consent is no defense; that notwithstanding her consent the act, on the part of the man constitutes the crime of rape. State v. Woods, 49 Kan. 237,30 P. 520; State v. White, 44 Kan. [514,] 520, 25 P. 33. We answer the above question in the affirmative. A female under the age of 18 years may be guilty of the crime of incest."
In the case of Ex parte Tahbel, 46 Cal. App. 755,189 P. 804, one Bodo Tahbel, a boy 15 years of age, was committed to a detention home under a juvenile court law for refusing to answer certain questions when a witness in the juvenile court. His refusals to answer were upon the ground that by his answers he might incriminate himself. Habeas corpus was brought. The California court issued and made permanent the writ, saying in part, at page 806 of 189 P.:
"According to one of the oldest maxims of the common law, `Nemo tenetur seipsum accusare,' any person, whether a party or stranger to the litigation, either in a civil action or a criminal prosecution, may, *Page 302 if he sees fit, refuse to answer any question the answer to which, if true, will render him punishable for crime, or which, in any degree, may tend to establish a public offense with which he might be charged."
In this connection see also State v. Terrell, 55 Utah 314,186 P. 108, 25 A.L.R. 497, at page 326 of the Utah report, 186 P. at page 112.
Just what distinctions may be drawn in considering what constitutes a crime, a public offense, a delinquency or matters that will have a direct tendency to degrade the character of a witness called upon to answer concerning acts to which a person may have been a party, is a difficult matter to decide and has resulted in what seems to be a conflict of authority. No good purpose would be served by collecting the cases and attempting to harmonize or distinguish them or classify them upon the basis of principles applied.
The word "delinquent" is now commonly used with reference to derelictions and acts other than felonies of children, although the same derelictions and acts when applied to those over a specified age are commonly denominated crimes. A typical example is that of larceny. The same act performed by a male 18 years of age, in stealing property, is a crime, while if performed before that age is denominated a delinquency. In either instance the degradation incident to the act is the same. If the concept of criminality arises only because of an arbitrary age limit fixed by statute, then it is all the more important that the juvenile should be entitled to and be protected in the right to the privilege of silence where his statements, if made, might be self-criminating. Again, if the juvenile court proceedings are "in the interest" of the delinquent surely a sexual abberation should not be made a matter of public record to the humiliation or degradation of a juvenile.
The conception of juvenile delinquency should be looked upon charitably, equitably, and even tenderly, though firmly. We simply indicate that juvenile delinquency is predicated upon positive or aggressive acts of the juvenile, necessary *Page 303 to give the juvenile court jurisdiction, the same acts that would vest any other court with criminal jurisdiction whether juvenile or adult. We have in mind such offenses as petit larceny, assault and battery, etc. We are thus confronted with the problem of what constitutes punishment and what may be "in the interest" of the delinquent in juvenile court procedure. Put otherwise, is the commitment of a juvenile to a detention home, public or private, or to the industrial school or other "place of safety" or an officer's taking "a child into custody," and thereby depriving him of the society of his friends and associates, the attention and care of his parents, any less a punishment than the commitment of an adult to a county jail or the state prison, provided both are in the interest of and for the benefit of the person so committed?
It is provided by the Utah statutes relating to juvenile court jurisdiction that such courts shall have "exclusive original jurisdiction in all cases relating to the * * * delinquency of children who are under eighteen years of age, except in felony cases * * *." R.S.U. 1933, 14-7-4, also:
"No adjudication upon the status of any child by the juvenile court shall operate to impose any of the civil disabilities ordinarily imposed by a conviction in a criminal case, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction. Neither the record of the disposition of a child nor any evidence given in the juvenile court shall be admissible as evidence against the child in any case or proceedings in any other court." R.S.U. 1933, 14-7-32.
Degradation is the bringing of one into shame or humiliation of one's self or into the contempt, disrespect, disfavor, dishonor, or diminished esteem of one's relatives, friends, associates or the community of his residence.
The prisoner should be discharged. Such is the order.
LARSON, J., concurs. *Page 304