People ex rel. Lewisohn v. Court of General Sessions

Ingraham, J.:

The relator, a witness before the grand jury of the county of New York, to testify in a proceeding against one Canfield, who was charged with a violation of section 344 of the Penal Code, was asked whether he had .ever been in the premises No. 5 East Forty-fourth street, in the city of New York; whether he had seen the said Canfield in the said premises No. 5 East Forty-fourth street, in the city of New York; and whether he had played roulette there? These questions the relator declined to answer; and when directed by the foreman of the grand jury to answer he persisted in his refusal. The grand jury then made a presentment to the Court of General Sessions, setting forth the refusal of the relator to answer the questions; and the relator, then present in court, was asked in the presence of the grand jury whether or not he would answer the questions propounded to him by the grand jury. In reply the relator declined to withdraw the refusal already made before the grand jury and stated that he would not, if recalled, answer the questions; whereupon the court ordered and adjudged that the relator was guilty of a, criminal contempt of court in having refused to answer the legal and proper interrogatories addressed ■to him by the grand jury during the sitting of .the court in its immediate view and presence; and further adjudged that the relator be imprisoned in the common jail of the county of New York for a period of fifteen' days unless he should purge himself of the contempt. The relator thereupon presented a petition to- the Supreme Court asking for a writ of certiorari to review this commitment for contempt. ,

There is annexed to this petition a transcript of the proceeding ■ before, the grand jury, from which it appears that the relator refused to answer on advice of counsel, upon the ground, among others, that his answer might tend to criminate or degrade him or subject him to a penalty or forfeiture, and he claimed his constitu- I tional rights and privileges. By the return to the writ of certiorari II it appears that the district attorney of the county of New York H appeared before the grand jury and laid before them an informa- ■ tion charging that one Richard A. Canfield used certain premises, IH No. 5 East -Forty-fourth street, in the city of New York, for fl gambling and allowed tó be played in said premises certain gam- H Wing and banking games where money or property depended upon the result, which were maintained upon the said premises for the purpose of making a profit for said Canfield. TJpon that information the relator was subpoenaed as a witness before the grand jury and interrogated in relation to his knowledge of the premises, and refused to answer the questions addressed to him by the grand jury as to whether he had ever been upon the premises, had ever seen •Canfield upon the premises, and.whether he had ever played roulette, one of the games played there.

This information was presented to the grand jury under chapter 9 •of title 10 of the Penal Code. Section 344 of said Code, which is in that chapter, provides that “ a person who is the owner, agent or superintendent of a place, or of any device, or apparatus, for gambling; or who hires, or allows to be used a room, table, establishment or apparatus for such a purpose ” is a common gambler, and punishable by imprisonment for not more than two years, or by a fine not exceeding $1,000, or both. Section 342 of the Penal Code, as amended by chapter 649 of the Laws of 1904, provides that “ no person shall be excused from attending and testifying * * 1 * before any court or magistrate upon any investigation, proceeding or trial, for a violation of any of the provisions of this chapter upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of. any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.” Upon this appeal the objections taken are that chapter 649 of the Laws of 1904, amending section 342 of the Penal Code, is unconstitutional; and that if constitutional the section as amended does not apply to an investigation into a violation of chapter 9 of title 10 of the Penal Code committed before the act of 1904 became a law.

The objection to the constitutionality of the act is based upon section 6 of article 1 of the Constitution which provides that no person shall “ be compelled, in any criminal case, to be a witness against himself,” and the relator insists that by compelling him to answer the questions propounded to him he is . compelled to be. a witness against himself in a criminal proceeding.

The right of a witness to refuse to answer a question upon the ground that it would tend to criminate him or. subject him to a. penalty or to disgrace or degrade him is not protected by a constitutional provision. It is within the power of the Legislature to determine the extent and limit of the personal right of a witness to refuse to answer questions asked him in the Course of a judicial proceeding The Legislature has power to require a witness to answer any question, except so far as he is protected by the constitutional provision which prohibits his being compelled to be a witness against himself, and it follows that if the answers to the questions asked cannot in any way be used against the witness in a criminal proceeding the provisions of the Constitution are not violated.

For a refusal to answer similar questions upon a former proceeding against Canfield this relator was committed for contempt, and upon a review of that commitment this court held in People ex rel. Lewisohn v. O'Brien (81 App. Div. 51) that under section 342 of the Penal Code, as it existed before the amendment of 1904-(See Laws of 1881, chap. 676, § 342), the relator could not be compelled to answer questions as to his relations with Canfield, and that, therefore, the court was not justified in requiring him to answer questions • or in adjudging him guilty of contempt for his. refusal; and this was affirmed by the Court of Appeals (176 N. Y. 253). Judge Babtlett, in delivering the opinion of that court, says : “ The relator seeks to justify his refusal to answer under article one, section six of the Constitution of this State, which provides that no person £ shall be compelled in any criminal case to be a witness against himself,’ ” and that the provision of section 342 of the Penal Code, as it then existed, did not afford him full protection. The court then, after discussing the case of People ex rel. Hackley v. Kelly (24 N. Y. 74) and the decision of the Supreme Court of the United States in Counselman v. Hitchcock (142 U. S. 547), followed the decision of the Supreme Court of the United States and construed this constitutional provision as meaning not only that a person should not be compelled te be a witness-.against himself in a criminal -proceeding, hut that its. object was to insure a person from being compelled to give testimony as a witness in any investigation which might tend to show that he had committed a crime ; that the provision in the statute that the evidence given by the witness should not be received against him in any criminal investigation or proceeding was not coextensive with the constitutional provision, and that it was a reasonable construction of the provision that the witness is protected from being •compelled to disclose the circumstances of his offense or the sources from which or the means by which evidence of its commission or of liis connection with it may be obtained or made effectual for his conviction without using his answers as direct admissions against him. In discussing the case of Brown v. Walker (161 U. S. 591), which involved the construction of an act of Congress of 1893 (27 U. S. Stat. at Large, 443, chap. 83) in reference to producing books and papers and testifying before the Interstate Commerce Commission, where it was held that the statute of 1893 was coextensive with the 5th amendment of the Constitution of the United States in the immunity that it afforded the witness, and that he was not deprived of his constitutional right thereby and must answer the question, the court say: “ It is doubtless true that cases may arise where the mere fact of the witness asserting that to answer the question would tend to criminate him would not be conclusive. Where the court can see that the refusal to answer is .a mere device to protect a third party, and that the witness is in no possible danger of disclosing facts that would lead to his own indictment and conviction, an answer may be insisted upon. * * * This distinction is to be kept in mind as to the attitude of a witness before the court where complete statutory protection, co-extensive with the constitutional provision, exists, and where it is lacking. In the former situation the witness is deprived of his constitutional right of refusing to answer. The point was decided by this court in People v. Sharp (107 N. Y. 427), and by the Supreme Court of the United States in Brown v. Walker (161 U. S. 591). We adhere to the point thus decided.” Judge Gray, in a concurring opinion, says: “ If the interests of the people are deemed to require it, it is, of course, quite competent, and proper, for the legislative body to provide for an exemption of the witness from liability to prosecution, as broad in its effect as is the constitutional privilege.”

We think there is no doubt but that this statute does give the witness complete immunity from prosecution -for any crime in relation to the acts about which he was interrogated, and if he has this immunity it necessarily follows that compelling him to answer in. relation to the crime, although he was directly connected with it* does not compel him to be a witness against himself in a criminal proceeding. The statute says that he shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so-given or produced shall be received against him upon any-criminal investigation or proceeding. The effect of such a provision was so-fully - and satisfactorily discussed by the Supreme Court of the United States in Brown v. Walker (supra) that further discussion is unnecessary. The statute under consideration in that case was-almost identical with section 342 of the Penal Code as amended by the act of 1904, while the provision of the Constitution of the United States is the same as that of the Constitution of the.State of New York, and it was held that such a statute granted complete-immunity and that compelling a witness to answer where so protected was not a violation of .the rights accorded to him by the Constitution of the United States. And all the opinions delivered in the Court of Appeals upon the question presented under this section of the Penal Code before its amendment recognized and approved, the determination airived at by the Supreme Court of the United States. (People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253.)

It follows, therefore, that the relator was not justified in refusing to answer because the protection afforded him by the Penal Code was not sufficient.

I do not think that the application of section 342 of the Penal v-Code, as amended by thé act of 1904, to a proceeding commenced after its passage is giving it a retroactive effect. The section as amended applies only to the rights of a witness attending and testifying or producing books, papers or other documents before a court Or magistrate upon'any investigation, proceeding or tidal, for a violation of the provisions of the chapter of the Penal Code of which the section is a part. It relates to a rule of evidence and does not bear at all upon the commission of the offense or the evidence necessary to prove it. It acts not upon the person charged with the offense, but upon a witness called to testify in a judicial proceeding in relation to it. The person charged with the crime is not a party to this proceeding; nor is the person charged with the crime entitled to object to a question asked a witness upon the ground that the answer would tend to incriminate the witness. This privilege is one purely personal to the witness, and his right to-refuse to testify depends upon the law in force at the time he is. called and examined. To justify his refusal to answer it must appear that at the time of the examination he was then entitled to exercise his personal privilege; and if he was not, it was the duty of the court to require him to answer and to enforce obedience to-its direction by proceedings for a contempt.

I have come to the conclusion, therefore, that this relator was-bound to answer; that he was not justified in disobeying the order of the court directing him to answer, and - for that reason he was-properly pumshed for his contempt.

It follows that the writ must be dismissed and the proceedings, affirmed, with costs.

Van Brunt, P. J., concurred in result; McLaughlin and Laughlin, JJ., dissented.