DISSENTING OPINION OP
COKE, C. J.The affidavit of the defendant herein shows and it was found and is certified by the circuit court to be a fact that at and during the examination the defendant was wholly ignorant of the fact that the charges in the indictment were being inquired into by the grand jury. The subpoena requiring the defendant to appear before the grand jury does not contain the slightest intimation of the nature of the investigation being conducted. There are instances where the subpoena, the nature of the questions propounded or other circumstances should clearly indicate to a person of ordinary intelligence that his own conduct was under scrutiny. In such a case it would perhaps be unnecessary to advise the witness of the nature of the investigation, as also where the witness is a lawyer it might not be deemed necessary to advise him of his constitutional right to refuse to give self-incriminating evidence. But in the present case the record conclusively shows that the defendant Aims not aware of the nature of the investigation. It appears that the questions propounded to defendant while before the grand jury had to do with the business of the firm of Cabrinha & Company and particularly respecting the names of persons having pecuniary interests therein. This information might have been required by the grand jury in an inquiry in which the conduct. of the defendant was in no Avay connected. Under *628these circumstances it was not sufficient to merely advise the witness of his right to refuse to make self-incriminating statements but in addition thereto he should have been advised that his conduct was under fire in order that he might determine whether or not his answers to the questions propounded would tend to incriminate him.
In the case of the United States v. On Tai, 3 U. S. Dist. Ct. Haw. 491, the defendant prior to his indictment was subpoenaed by the grand jury and conducted before it by the United States marshal. After the witness was sworn he was advised by the United States attorney that he need not answer any questions if he did not want to and that he had a right to refuse to answer all questions. He then gave self-incriminating evidence and was subsequently indicted. Thereafter he moved to quash the indictment upon the same grounds as are presented in the case at bar. In the opinion in that case, which was written by a former chief justice of this court, the indictment was sustained although the procedure was severely criticized. But, as contra-distinguished from the present case, the court there found from the evidence of the defendant and from the fact that the property of the Federal government which it was alleged he unlawfully purchased from a soldier was taken from his house at the time he was subpoenaed and was exhibited before him in the grand jury room, that he was aware of the nature of the inquiry being conducted by the grand jury. The court said, “I do not hesitate to express my disapproval of the calling of the defendant in this case before the grand jury under the circumstances shown. * * But, having been sent for, the fact that his conduct was being investigated should have been clearly explained to him and, to have been absolutely fair, an opportunity should have been given him to consult with counsel even though he was not entitled to the assistance of counsel as he would be if on trial. But in view of the fact that *629lie had a general idea of the subject of investigation, derived from the surrounding circumstances, and must have known that he was at least under some suspicion in connection with the alleged purchase of clothing and that he Avas, as he admits, fully advised of his right to refuse to answer questions it can hardly be said that he was compelled to give evidence against himself.” The court in that opinion quotes with approval the language employed in United States v. Kimball, 117 Fed. 156, where the rule is laid down “that- where the acts or conduct of a particular person Avho is under suspicion are being inquired into and that person is called as a witness he should be apprised of the fact that he is under fire and adA'ised as to- his right to refuse to answer questions which may tend to incriminate him.” The maxim nemo tenetur seipsum acensare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons which had long obtained in Continental Europe and-which until the expulsion of the Stuarts from the English throne in 1688 and the erection of additional barriers for the protection of the people against the exercise of arbitrary power was not uncommon in England. The celebrated trial of Sir Nicholas Throckmorton and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion but upon a general and silent acquiescence of the courts in a popular demand. But however adopted it has become firmly imbedded in English as well as American jurispimdence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States with one accord made a denial of the right to question an accused person a part of their fundamental law so that a maxim which in England was a mere rule *630of evidence became clothed in this country with the impregnabilities of a constitutional enactment. It has found engraftment into the various state constitutions and Avas written by the people of the Union through the medium of James Madison into the Federal Constitntion. It secures a right of personal liberty Avhich Congress itself cannot revoke and which no court should attempt to Avithhold. Any attempt to extort from a witness evidence for the purpose of indicting him for a criminal offense is a proceeding which cannot abide the pure atmosphere of political liberty and personal freedom.
In the majority opinion it is held that the case of United States v. Edgerton, 80 Fed. 371, does not apply here because in that case it does not appear that the defendant was advised of his right to refuse to give self-incriminating evidence. That question was not before the court in the Edgerton case and no point Avas made of it. The decision is based solely upon two points, first, respecting the presence in the grand jury room of a person who it was claimed had no right there, and second, “that the defendant was required by a subpoena to appear before the grand jnry as a witness and that he did appear in obedience to snch subpoena and was Sworn and examined and required to testify to matters and things relating to and material the charge made in the indictment against him and this without being informed or having knoAvledge that the grand jury had under consideration any matter involving a criminal charge against him.” And the court in passing upon the second ground presented used the folloAving clear and emphatic language: "It is fatal to the indictments that the defendant toas called to testify in the particular matter from which they resulted without being informed or knowing that his oxen conduct teas the subject under investigation
I cannot conceive of language more clearly applicable *631to tlie case at bar. The defendant in this case was subpoenaed and in obedience to the subpoena appeared before the grand jury and gave evidence. The circuit court certifies that he was wholly ignorant of the fact that the charges in the indictment were being inquired into by the grand jury and upon the evidence of the defendant, together with other evidence, an indictment was returned against him charging him with the crime. The opinion in Fdgerton case, so far as I am aware, has never been overruled. In fact it has been favorably commented upon and adopted by courts of other jurisdictions. See State v. Faulkner, 175 Mo. 546, 610, 611. The court of general sessions in New York in dealing with the same subject in People v. Haines, 1 N. Y. S. 55, also held that a defendant called before a grand jury should be informed of the charge against him. See also People v. Singer, 18 Abb. N. C. 96. The authorities uniformly hold that rights conferred by constitutional grant must, have broad and liberal construction and application.
The majority opinion, Avhile recognizing the necessity of advising a Avitness of his constitutional privilege to refuse to give self-incriminating evidence, denies him the right to knoAV the nature of the inquiry. The latter I think is equally as essential as the former, for how can- a Avitness determine Avhether his evidence may or may not incriminate him if he be in total darkness as to the matter under investigation.
In my opinion the motion to quash should be granted. The cause can then be resubmitted to another grand jury free from any Adolation of the constitutional rights of the defendant.