State v. Lambert

                                No. 13101

       I N THE SUPREME COURT O THE STATE O M N A A
                              F           F OTN

                                   1975



THE STATE O MONTANA,
           F

                         P l a i n t i f f and Respondent,

       -vs -

HOWARD A. LAMBERT,

                         Defendant and A p p e l l a n t .



ORIGINAL PROCEEDING:

Counsel o f Record:

     For Appellant :

          Dennis Conner a r g u e d , G r e a t Fa 11s , Montana
          Daniel Piedalue, Student I n t e r n , argued, Great F a l l s ,
           Montana

     F o r Respondent:

          Hon. Robert L. Woodahl, A t t o r n e y G e n e r a l , Helena,
           Montana
          J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s ,
           Montana
          Mike G r e e l y a r g u e d , Deputy County A t t o r n e y , G r e a t
           F a l l s , Montana



                                          Submitted:         J u l y 30, 1975

                                             Decided
                                                       ~ ~ V G. S
PER CURIAM:

        In this original proceeding defendant-petitioner seeks

a writ of certiorari to review an order of the district court

of the eighth judicial district, Cascade County, dated July 8,

1975, filed July 9, 1975.
                                                        w
        The circumstances present in the district court ss that

defendant was charged with the offense of aggravated assault, a

felony, on May 20, 1975, involving the discharge of a weapon,

being a shotgun, in the direction of two persons on or about

May 1, 1975.

        On June 17, 1975, the State moved for an order directing

defendant to produce testimony identifying the person who alleged-

ly discharged the weapon, pursuant to section 95-1807, R.C.M.    1947,
as amended, which provides:

        "Compelling testimony: immunity from prosecution.
        Before or during trial in any judicial proceeding
        a justice of the supreme court or judge of the
        district court, upon request by the attorney prose-
        cuting or counsel for the defense, may require a
        person to answer any question or produce any evi-
        dence that may incriminate him. If a person is
        required to give testimony or produce evidence, in
        accordance with this section, in any investigation
        or proceeding he cannot be prosecuted or subjected
        to any penalty or forfeiture, other than a prose-
        cution or action for perjury or contempt, for or
        on account of any transaction, matter or thing con-
        cerning which he testified or produced evidence."

        Charges were dismissed against petitioner on June 27, 1975,
and on that date defendant was duly sworn to testify and did

testify that he knew the identity of the person who discharged
the weapon but refused to disclose it.   He was subsequently held
in contempt of court for his failure to identify the person by
an order dated July 8, 1975, as hereinbefore referred to.
        Upon consideration of the petition this Court ordered an
adversary hearing.   Such hearing was had on July 30, 1975, briefs

were filed, oral argument had and the matter taken under advise-

ment by the Court.
          It is contended by defendant that the proceeding before
the district court was not a judicial proceeding within the
meaning of the statute, section 95-1807, but was in the nature
of an investigatory proceeding.       The district court disagreed

with this contention and defendant in this proceeding asserts

such holding was erroneous because it is based upon an improper

statutory construction of the statutes and constitutions of the
State of Montana and the United States.
          It is our opinion that the district court was correct

in its ruling.    The Arizona Court    of Appeals stated in Smith
v. superior Court, Pima County, 17 ~riz.App. 79, 495 P.2d 519, at

page 521:

       " * * * the purpose of immunity statutes is to
       aid prosecuting officers in apprehending crim-
      inals, or those engaged in crirni.nal enterp~ises,
      by inducing them or their confederates to turn
      state's evidence and tell on each other or to place
      at the disposal of the prosecuting attorney evidence
      which constitutional provisions granting a witness
      the privilege of refusing to testify against himself
      make unavailable."

          Further, at page 522 in the same opinion, the Court
stated:
          " I * * * The term "judicial proceeding" encompasses
          every proceeding before a competent court in the
          due course of law of administration of justice re-
          sulting in any determination or action on the part
          of the court.'"

Other courts have had the opportunity to elaborate on what

constitutes a "judicial proceeding".      In Jarman v. Offutt,
80 S.E.2d 248, 251, 239 N.C. 468 (1954), it "'includes every
proceeding of a judicial nature before a competent court or
before a tribunal or officer clothed with judicial or quasi-
judicial powers.'"
          This power (to subpoena) relates to a "judicial proceed-
ing", which includes, of course, any pretrial hearing held by
the court.    State v. Nichols, 325 A.2d 28, 32,(Me. 1974).
       We believe that this is the correct interpretation of
our similar statute and the writ requested is denied and this

proceeding is ordered dismissed.


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