People v. Cummins

Ingraham, P. J. (concurring):

I entirely concur in the opinion of Mr. Justice Laughlin, and only wish to add a few words upon the claim by the defendant that in some way in this action he was compelled to give evidence against himself which would invalidate his conviction. The constitutional provision which it is claimed was violated is contained in section 6 of article 1 of the Constitution and provides: “Ho person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law. ” This provision was adopted to maintain and enforce one of the fundamental provisions of the English common law, that a person could *116not be convicted of a crime except upon independent proof of the facts to justify a conviction. As I understand the position taken by the learned counsel for the defendant it is not claimed that he was called as a witness by the People on the trial of this case or compelled on the trial to give evidence against himself, nor was any testimony that he had given in any other action or proceeding introduced as evidence against him. This provision of the Constitution, therefore, was not violated by the learned judge who tried this case in any particular, and, therefore, there was no error committed by which the defendant’s rights under this provision of the Constitution were impaired or affected. After this indictment was found and the defendant had pleaded to it he was called before the grand jury to testify as a witness for the People in a charge of bribery against Hyde, and assuming that he was compelled to answer questions which he was justified in refusing to answer, it is difficult to see what effect such a condition could have upon the subsequent trial under this indictment where the People neither proved nor offered to prove the testimony the defendant had given before the grand jury in the Hyde investigation. If the defendant was improperly ordered to answer questions before the grand jury in the Hyde investigation he could have refused to answer and raised the question as to whether he could be compelled to answer by a proceeding instituted for that purpose; but he acquiesced in the ruling of the court that the questions were proper and answered them. Such questions so far as appears by the record had nothing to do with the question that was being tried upon the indictment in this case as the crime under investigation by the grand jury was one entirely distinct from the crime charged under this indictment. This objection was really a claim that in some way the defendant was entitled to immunity from this crime because the court compelled him to testify in the Hyde investigation. It is not claimed that the district attorney promised him such immunity and no statute or rule of law is cited which would produce that result. The defendant was entitled to immunity from a charge of bribing Hyde, but that was the extent to which his answering the questions before the grand jury could go, and there was nothing which could justify the court on the trial of *117this case giving the defendant immunity and discharging him. I, therefore, concur in the affirmance of this judgment.