I dissent. I agree with Mr. Justice Hart, of the district court of appeal, as to the construction that should be given to section 1324 of the Penal Code, and concur generally in the opinion written by him and concurred in by Mr. Justice Burnett. That opinion is as follows: *Page 794
"I am not prepared to agree with the conclusion of the presiding justice as to the construction of section 1324 of the Penal Code. It is readily to be conceded that the language of that section as a whole is singularly ambiguous and the real intent of the statute correspondingly obscure. Indeed, the several provisions of the section appear to be inconsistent with themselves; and for this very reason the language of the section should not be too literally followed, but given a construction which, it seems to me, will discover what may well be said to be the true intent of the statute — a consideration not wholly without support from the language of the section and under which its primary and important purpose may as well be effectuated as by the construction given it by my associate and at the same time afford less reason for apprehending from its practical application serious consequences to the public and society.
"So much of the section as is necessary for my purposes here reads as follows: 'No person shall be exempt from indictment, presentment by information, prosecution or punishment for the offense with reference to which he may have testified as aforesaid, or for or on account of any transaction, matter or thing concerning which he may have testified as aforesaid, or produced evidence, decumentary or otherwise, where such person so testifying or so producing evidence, documentary or otherwise, does so voluntarily, or when such person so testifying or so producing evidence fails to ask to be excused from testifying or so producing evidence, on the ground that his testimony or such evidence. documentary or otherwise, may incriminate himself, but in all such cases, the testimony or evidence, documentary or otherwise, so given may be used in any criminal prosecution or proceeding against the person so testifying or producing such evidence, documentary or otherwise.
" 'Any person shall be deemed to have asked to be excused from testifying or producing evidence, documentary or otherwise, under this section, unless before any testimony is given or evidence, documentary or otherwise, is produced by such a witness, the judge, foreman or other person presiding at such trial, hearing, proceeding or investigation, shall distinctly read this section of this code to such witness, and the form of the objection by the witness shall be immaterial, if he in substance makes objection that his testimony or the *Page 795 production of such evidence, documentary or otherwise, may incriminate himself, and he shall not be obliged to object to each question, but one objection shall be sufficient to protect such witness from prosecution for any offense concerning which he may testify, or for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, upon such trial, hearing, proceeding or investigation.'
"A careful examination of the section will, I think, show that there are three propositions contained therein which cannot be disputed, to wit: 1. That immunity will not be granted to one who voluntarily gives testimony which incriminates or tends to incriminate himself; 2. That such immunity will not be granted unless the witness asks to be excused; 3. That where he desires to be excused, he must make an objection in some form to the giving of the testimony.
"Very clearly, if a witness voluntarily testifies, the provision of the statute that he may gain immunity by asking to be excused has no application. Voluntarily testifying and testifying only after asking to be excused are obviously two entirely different propositions. If a witness testifies only after he has asked or demanded to be excused, he is not a voluntary witness; for he may not even then be excused from testifying. On the contrary, he is compelled to testify whether he wants to or not, but, having asked to be excused, he may not be prosecuted for the offense or charge to which his testimony so given relates. But the question arises: How and by whom is it to be made known that he does not appear as a voluntary witness? I think that the reply to this question is to be found in the latter part of the section, where language is used plainly implying that the witness must himself make it known, in some manner or form, in the proceeding in which he is calledas a witness that he objects to testifying in said proceeding, because his testimony so given will incriminate him. Not only does this appear to be true, but the same language of the section to my mind implies that, unlike the case where extrajudicial incriminatory statements are sought to be shown against one accused on trial, the onus or burden is upon the witness to show that he made timely objection to giving the testimony, otherwise his testimony will be treated as having been voluntarily given. This must be the correct view because it is not a case where his guilt *Page 796 is being proved, he having already admitted that he committed the crime, but a case where he is asking the favor of the law — in other words, asking immunity from prosecution, and, therefore, from the consequences of his criminal act.
"But much stress is laid upon the provision of the section that where the entire section is not read to the witness, he shall be deemed to have asked to be excused; and it is said that if that provision of said section is to be given any force, it must mean that whether or not the witness 'demands that he be excused' or 'asks to be excused from testifying,' the statute has made the demand or request for him. True, the statute makes the demand or request to be excused for him, where the section is not read to the witness as prescribed; but, under my view of the section, as above indicated, the statute can make no such 'demand' or 'request,' nor, indeed, is there any occasion for the interposition of the statute in that regard until the witness has himself objected in some manner to the giving of testimony and so disclosed that he is not a voluntary witness.
"The statute does not require nor contemplate that the witness shall specifically request to be excused. He may merely object in a general way to testifying, claiming that his testimony will incriminate him, or make any objection that will disclose that he is not on the stand as a voluntary witness. When he has made such objection, in whatever form, then, if the statute is not read to him, he will be deemed to have asked to be excused, although he may not in specific language have asked or requested or demanded to be excused.
"In conclusion, and by way of recapitulation, my view of the section is this: That no witness who, without objection in any manner or form whatsoever, takes the stand and gives testimony whereby he incriminates himself can claim immunity under the statute; that, if he would claim immunity from prosecution, he must first object or in some manner show that he is not a voluntary witness, and that until he does this, the provision presuming him to have asked to be excused does not apply.
"It does not appear from the proceedings of the preliminary examination of his alleged confederate relating to his testimony that he objected to giving testimony therein, and, under the provision of said section implying that it was his duty to so object if he would be entitled to the immunity guaranteed *Page 797 by said section, this court may presume that he made no objection, and was therefore a voluntary witness."
I therefore think that the judgment and the order appealed from ought to be affirmed.
Lawlor, J., and Lorigan, J., concurred.
Rehearing denied.