People v. Cahill

Gaynor, J.:

It is the duty of the state superintendent of elections to superintend the registration of voters, and investigate all matters relating thereto, in the metropolitan elections district (Laws of 1905, ch. 689). For the purpose of such investigation he is empowered to visit and inspect any house, hotel or building, and to interrogate the owner, keeper, landlord or any inmate thereof “ as to any person or persons residing or claiming to reside therein or thereat ” (sec. 6) ; and for that purpose to issue subpoenas in his name and returnable before him or one of his deputies appointed for that purpose for examination on any matter within his jurisdiction ; and it is provided that any person who shall refuse to obey such a subpoena or to testify on oath under it is guilty of a misdemeanor, or who shall testify falsely on such an examination is guilty of a felony (sec. 1). The defendant being so subpoenaed and examined before a deputy commissioner has been indicted and convicted of testifying falsely on such examination. He was examined in respect of whether he and two other men resided in the house from which they all registered in the borough • of Brooklyn, that being the matter under investigation. He was lessee of the ground floor of the said house and the next floor above, and kept a saloon on the ground floor. The residence of his wife and family was-in another election district in the said borough. He testified o.n the examination that the said other two men had regularly slept and resided in the room over his saloon the requisite statutory time for registration therefrom, and that he lived there. The indictment accuses him of testifying falsely in respect of the residence of both himself and the other two men, but the learned trial Judge in his charge to the jury confined the case to whether the defendant had testified falsely in respect of the latter.

1. It is contended that the said section 7 is unconstitutional and void for compelling persons to testify against themselves in violation of our constitutional prohibition,state and national, that “Ho person shall * * * be compelled in any criminal case to be a witness against himsel" * This contention arises out of an obvious misconception. By making it a criminal offense for a person subpoenaed to refuse to appear and testify, the statute does not take away his constitutional privilege to refuse to answer if to do so might tend to incriminate him. All witnesses subpoenaed to court are under some similiar compulsion, but that does not deprive them of their constitutional privilege. Indeed, it is only to witnesses who are being required to testify that the privilege belongs.

2. It is contended that it was error to allow what the defendant testified to on his examination before the deputy commissioner to be proved on the trial, on the ground that he was illegally coerced by the pains and penalties of the statute to give such testimony, and that therefore to use it on his trial was to make him witness against himself in violation of the said constitutional prohibition ; as is the familiar every day rule in respect of all confessions or statements, oral or written, extorted from persons accused of crime by illegal duress of police officers, magistrates or others. As it was necessary in order to prove the charge contained in the indictment to prove what the defendant testified to before the deputy commissioner, as a preliminary to proving that it was false, the objection, stated in other words and in its full significance, is that a charge of perjury cannot be based upon the falsity of the defendant’s testimony before the deputy commissioner for the reason that he was illegally compelled by the statute to give it; for if the giving of the alleged false testimony cannot be proved it follows that a charge of perjury cannot be based upon it.

This all rests on whether the defendant was illegally coerced to testify before the deputy commissioner — that" is to say, notwithstanding and in violation of his said constitutional privilege — and that, it is plain, must be answered in the negative. The privilege to refuse to answer on the ground that his answers might tend to incriminate him did not exist in respect of the defendant’s examination before the deputy commissioner, for the reason that there was a statute giving him immunity from prosecution for any past crime which his testimony might disclose or lead to, viz., section 41q of the Penal Code. The object of the constitutional privilege is to protect the witness from the danger of prosecution for a past crime committed by him which his evidence may disclose or give a clue to, but when there is a pardon, or a statute of limitation, or of immunity, which removes that danger, the constitutional privilege cannot be invoked for there is nothing for it to apply to, i. e., no danger to protect the witness against (Counselman v. Hitchcock, 142 U. S. 547; People ex rel. Taylor v. Forbes, 143 N. Y. 219; Matter of Leich, 31 Misc. Rep. 671; People ex rel. Lewisohn v. General Sessions, 96 App. Div. 201; affd., 179 N. Y. 594). The crime in respect of which it is claimed that the defendant was compelled to witness against himself before the deputy commissioner is that of unlawful registration, which is defined in section 41a of the Penal Code. Section 41q provides that a person so offending “ is a competent witness against another person so offending ”, and that he “ may be compelled to attend and testify on any trial, hearing or proceeding or investigation in the same manner as any other person ”, and that “ The testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person testifying ”, ancl that “ Any such person testifying shall not thereafter be liable to indictment, prosecution or punishment for the offense with reference to which his testimony was given, and may plead or prove the giving of testimony accordingly, in bar of such an indictment or prosecution”. In the case of People v. Sharp (107 N. Y. 427) it was held that section 79 of the Penal Code, which is in the same words in these respects as section 41q, gave complete immunity.

The suggestion is made that literally this only gives the witness immunity against his testimony against “ another person so offending ”, and the crime it discloses against snch other person, and not against its disclosures against himself. It would be quite too much to try to read a statute intended to give immunity to witnesses as giving them immunity against something that they need no immunity against; i. e., the derelictions of others, instead of against their own derelictions.

3. The contention that the immunity did not protect the defendant for the reason that the investigation might reveal a crime of illegal registration of which the defendant was guilty, either as a principal or as an accomplice, must be deemed singular. That construction of immunity statutes would nullify their purpose, for they apply mainly to witnesses whose examination will show them to be thus implicated, instead of guilty of some crime foreign to the subject matter of the investigation. The principal object of immunity statutes is to give immunity to witnesses called in an investigation against any crime that may be revealed thereby, so that they may not shield themselves behind constitutional privilege, but may be required to testify, to the end that the investigation may be carried on.

4. It would be a still stranger notion that because the defendant was under legal compulsion to testify before the deputy commissioner by reason of the immunity statute, he was free to testify falsely without being amenable to the penalties of perjury, which would be the case if the evidence he gave could not be given in evidence in a criminal prosecution of him for perjury in the giving of it. Out of abundance of caution it is provided by the Penal Code that snch evidence may be proved in such a prosecution (sec. 712); but it must be manifest that the immunity is only given for past crimes, not for future ones. It could not be for perjury committed in the examination ; nor can it be construed that the general words of the immunity statute that the evidence shall not thereafter be used against the witness in any prosecution, has reference to crimes he may afterwards commit. It lias reference only to past crimes by him which his testimony might disclose or lead to the discovery of.

5. If it were conceded that section 41q did not.give the defendant the required immunity to make the giving of his testimony compulsory, as is contended, then his common law rights ruled, and he had the right to claim his privilege, for it existed, whereas it could not exist if immunity existed ; and not having done so he waived it (Burrell v. Montana, 194 U. S. 572; In Re Knickerbocker Steamboat Co., 139 Fed. Rep. 713; In Re Consolidated Rendering Co., 80 Vt. 55; 66 Atl. Rep. 790; 1 Greenl. Ev. § 451; 3 Wigmore Ev. §§ 2268, 2281; 5 id. § 2281a). It is sought to avoid this conclusion by claiming that the investigation before the deputy commissioner was a criminal proceeding against the defendant, and that therefore it was illegal for the deputy commissioner to call him as a witness at all, which would make it unlawful to use the evidence thus got from him in any criminal prosecution against him. It suffices that there was no criminal prosecution or examination against the defendant or any one else before the deputy-commissioner. He had no power to hold one. He was an administrative officer, and the investigation he is empowered to make is solely for the purpose of superintending registration, and enabling the registration lists to be properly made up, scrutinized and revised. Too much is made of the fact that the deputy commissioner seemed to testify on the trial that he entitled the affidavit he had the defendant sign (and which is the evidence given by the defendant before him) “ The People against Joseph J. Cahill, Case Ho. 354”. It matters not how he entitled it; he could not make a criminal proceeding of his investigation by any title; but as matter of fact the affidavit is not so entitled, as appears by reference to it in evidence. Moreover, such a title is common to civil as well as to criminal proceedings.

The evidence against the defendant was ample.

The judgment should be affirmed.

Hooker and Rich, JJ., concurred; Jenks, J., read for reversal, with whom Miller, J., concurred.

* See State Const, art. 1, § 6; U. S. Const, 5th Amendt.— [Rep.