On the trial of a defendant charged with carnally and unlawfully knowing a female over the age of thirteen years and under the age of eighteen years the girl on whose person the crime was alleged to have been committed on July 27, 1938, was called as a witness. After she had denied that the crime alleged had been committed the witness was asked:
"Did the defendant James A. Kaddas have sexual intercourse with you at any time between July 4th, 1938 and July 27th, 1938?"
The objection of immateriality, incompetency and irrelevancy was overruled and the witness claimed her privilege against answering questions calling for incriminating or degrading answers. The court ruled the claim of privilege not available and found the witness in contempt for her refusal to answer. This proceeding was brought to test the lawfulness of the finding of contempt and the opinion written by Mr. Justice MOFFAT holds that the privilege is available to this witness, apparently on the grounds of both incrimination and degradation, under R.S. Utah 1933, 104-49-20.
I think in this case the objection on the ground of immateriality and irrelevancy should have been sustained but not on the ground set out in the court's opinion. In this case the only evidence was as to the position and state of dishabille of the witness and the defendant in the automobile. That spoke of only two possibilities — either that the act had not yet been started or that it had ended. The jury could not be permitted to speculate on which. Neither could any testimony as to prior acts enlighten the jury as to whether the couple were just making ready or had finished. The rule laid down in State v.Hilberg, 22 Utah 27, 61 P. 215, is in a case where a couple are together under such circumstances that it might or could have happened and the previous acts tend to explain what did happen. But when a couple are caught as in this case, where the issue is reduced only to *Page 305 the question of whether the act had not yet started or had been finished, and there is no doubt about the reason the two were together and what had either happened or was intended to happen, it appears to me that evidence of prior acts does not tend to explain anything about the case. It is as if the only evidence was positive that the two were actually found in commission of the act. How in such case would evidence of prior acts tend to render more probable the act charged or explain any acts which might have otherwise been neutral. Evidence of prior acts of intercourse have the same province as res gestae. They must tend to explain, or elucidate or color some other act which would otherwise be of a neutral shade. When the evidence of the situation of the parties charged with intercourse is such that no such prior acts can explain or elucidate or give any new significance to such situation, they are inadmissible because irrelevant.
It is for this reason I conclude that the objection on the ground of irrelevancy should have been sustained rather than for the reason given in the main opinion. I do not think it is incumbent on the court to explore ahead in the case in order to see what the final outcome may be before it rules on the objection of immateriality. The opinion says:
"As the evidence * * * then stood that objection should have been sustained."
Rules of evidence do not ordinarily depend on whether in the end the party offering it can make a case and the court does not need to explore into the matter of whether finally a case for the jury will be made out before he rules on a point of evidence. If in this case the girl's answers would have been relevant, the mere fact that even though admitted, a case for the jury could not have been made out by the state would not render them inadmissible on the ground of irrelevancy. In his administration and management of a trial the judge has a certain discretion to inquire if the party has any more evidence and if not spare a witness *Page 306 embarrassment and shame where her answers would avail nothing but that is a part of the discretion incident to good trial administration.
But a witness cannot defend a refusal to answer on the ground that the court has wrongly ruled his testimony admissible.
Consequently, we are required to determine if the witness could claim privilege under Sec. 104-49-20, R.S.U. 1933. The statute reads:
"A witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it is to the very fact in issue or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction for felony."
This statute must be analyzed as follows: There is first a compulsion to answer every question legal and pertinent to the matter at issue. That includes questions which may merely affect or touch the credibility of the witness or of other witnesses rather than those which affirmatively tend to establish a fact or to disprove a fact. State v. Hougensen, 91 Utah 351,64 P.2d 229. But from this general compulsion is withdrawn the requirement of answering questions where the answer will subject him to punishment for a felony. Such exception will be later considered. Also withdrawn from the realm of general compulsion are those questions which call for an answer which will have adirect tendency to degrade his character. But such exception to the requirement to answer does not exist if the question calls for an answer which "is to the very fact in issue or to a fact from which the fact in issue would be presumed." Certain it is that there is a growing tendency to construe this last quoted clause to mean any fact pertinent to prove or disprove a case except such as affect only credibility. In State v.Hougensen, supra, it was said [page 238]: *Page 307
"(2) Any witness may be asked a question the answer to which has a direct tendency to degrade his or her character if it ispertinent to establish the ultimate fact in issue or to a fact from which such fact may be presumed or inferred." (Italics added.)
In Conway v. Clinton, 1875, 1 Utah 215, 220, it was stated:
"* * * but it is well-settled that a witness is not bound to answer, nor a court to compel answer to an inquiry to disgrace a witness unless the evidence is material to the issue being tried." (Italics added.)
See Lukert v. Eldridge, 49 Mont. 46, 139 P. 999; Walters v. Seattle R. S.R. Co., 48 Wash. 233, 93 P. 419, 24 L.R.A., N.S., 788; 28 R.C.L. 423; Wigmore on Evidence, 2d Ed., 384. But it is not necessary in this case to determine whether the quoted clause should have a broad or narrow construction. If the evidence was irrelevant to any fact in issue, as we have heretofore shown, it cannot "go to the very fact in issue or to a fact from which the fact in issue may be presumed." In consequence of what has just been said I agree with the conclusion reached in the main opinion that the witness was not required to answer the question because she could claim privilege, but I think it unnecessary to hold generally that prior acts of intercourse do not "go to the very fact in issue or to a fact from which such fact may be presumed." In this case, owing to the evidence of the situation in which the couple were found, they do not. Whether in a different sort of a case where such prior acts are admissible, a witness may claim privilege on the point that it would degrade his or her character, will depend on whether we give the above quoted clause a broad or a narrow construction. The facts of this case relieve us at this time of determining that.
For the reasons above set out I agree with the results of the decision. I should think that the matter might have rested with a decision on this part of the case without entering into the field of incrimination. But since it does hold that the answers called for would have incriminated the girl and *Page 308 I dissent from such holding, I shall give my views. The part of Sec. 104-49-20, dealing with the matter, reads:
"A witness * * * need not give an answer which will have a tendency to subject him to punishment for felony * * *"
I agree that the statute must be construed to protect the witness against answering if the answers would tend to subject him to punishment for a misdemeanor if the offense is one malum in se. I reserve my opinion in the case of a misdemeanor which is malum prohibitum or of slight culpability. It may be that the Constitution may protect a witness in any case, but I am not now ready to hold that a witness may refrain, for instance, from giving testimony in some important case because it would reveal that he had over parked and thus tend to subject him to a small fine. City of Mobile v. McCown Oil Co., 226 Ala. 688,148 So. 402.
But I seriously disagree that a witness may refuse to answer questions because their answers may mean that the Juvenile Court will be put in information from which it may find delinquency. The opinion in this respect appears to lose sight of the whole basis of juvenile court purposes. The purpose was not to punish but to reform or save juveniles to good citizenry. In Mill v.Brown, 31 Utah 473, 88 P. 609, 120 Am. St. Rep. 935, it was stated [page 615]:
"Those who come, and are intended to be brought, before juvenile courts must be reached through love, not fear. The purpose in bringing them before the court is to lead them away from, and to destroy their propensities to, vice; to elevate, not degrade; to reform, not to punish them."
I can hardly conceive that a child should be able to say, "I will not tell what may enable the juvenile court to take hold of me and salvage me."
If in this case the witness could have been punished for a crime, I would, of course, agree that she would not have to answer. But the opinion seems to confuse the two ideas. It seems to hold that she can be punished for a crime, but *Page 309 out of an abundance of caution further concludes evidently that if she cannot she is protected because she may by her answers lay herself open to juvenile court jurisdiction. Section 14-7-4 provides that juvenile courts shall have "exclusive original jurisdiction in all cases relating to the * * * delinquency of children who are under eighteen years of age, except in felony cases * * *."
If this witness' testimony would have related to anything that could be a crime it would be fornication, which is a misdemeanor. R.S.U. 1933, 103-1-13, 103-51-5. Jurisdiction of this offense would be in the juvenile court. Section 14-7-25 provides as to the juvenile court:
"In all cases relating to the delinquency * * * of children and their disposition the court shall be regarded as exercising equity jurisdiction."
And as pointed out in the opinion, Sec. 14-7-32 provides as follows:
"No adjudication upon the status of any child by the juvenile court shall operate to impose any of the civil disabilities ordinarily imposed by a conviction in a criminal case, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction. Neither the record of the disposition of a child nor any evidence given in the juvenile court shall be admissible as evidence against the child in any case or proceedings in any other court."
So the question becomes this: Where a statute confers a privilege against testimony subjecting the witness to punishment for a crime, and the witness is a minor and the offense such that jurisdiction of the offense would be in the juvenile court only, which is not a criminal court and whose judgments or dispositions do not constitute convictions of crime, does the privilege apply? The opinion refers to four cases as relating to this question.State v. Terrell, 55 Utah 314, 326, 186 P. 108, 25 A.L.R. 497, holds that a child between the ages of seven and fourteen is capable of committing a felony, although recognizing that jurisdiction of the *Page 310 offense is in the juvenile court except when "punishable by death or life imprisonment." This helps not at all in determining whether an offense cognizable only in juvenile courts contemplates such "punishment" as makes the privilege of a witness against self-incrimination operative.
Ex parte Nesson, 25 S.D. 49, 125 N.W. 124, 27 L.R.A., N.S., 872, seems to be against the proposition as applied to this case. There the accused was charged with incest, committed upon his 15 year old daughter. The daughter claimed her privilege against answering the question whether such had taken place, and was found in contempt, the court contending that "inasmuch as the applicant was under the age of 18 years at the date inquired about, she could not be capable of committing the crime of incest, and therefore any answer she might make could not possibly tend to incriminate her." [page 125.] On appeal this contention was refused, and the court found that a 15 year old girl could commit the crime of incest and therefore "it was her constitutional right to refuse to answer the questions asked * * *." But no question was raised as to the possible effect on that ruling if the offense would be cognizable only in the juvenile court. The court said:
"* * * it is easy for the Legislature to prevent all danger along this line. Let it but pass an act authorizing the proper officer or officers to grant absolute immunity from punishment for any crime which the witness' evidence may tend to show her guilty of, and when such order of immunity is made, her constitutional privilege ceases."
Has not our juvenile court statute granted sufficient immunity as to fornication that the privilege is not available?
The third case is State v. Learned, 73 Kan. 328,85 P. 293. The portion which the opinion quotes merely says that a girl under the age of 18 years may be guilty of the crime of incest. That much may be admitted as true in this state also, and since the crime would be a felony it would be cognizable in either the juvenile court or the district court. The case, therefore, does not help in determining this problem. *Page 311
The other case referred to is Ex parte Tahbel, 46 Cal. App. 755,189 P. 804. That case is likewise of but little help since there the crime for which the 15 year old boy was placed in an institution for boys by the juvenile court was a felony and against the argument that "the minor is not being prosecuted for any crime, and is in no danger of conviction of a public offense," [page 806] the court replied by showing that he was also amenable to the courts since the statute provided as to juvenile courts that
"if it shall determine that such minor is not a fit and proper subject to be dealt with under the provisions of the act [the juvenile court] `may dismiss the petition therein, and direct that said person be prosecuted under the general law.'"
The juvenile court is not a criminal court. Mill v. Brown, supra; People v. Lewis, 260 N.Y. 171, 183 N.E. 353; 86 A.L.R. 1001. But are its processes nevertheless such as constitute "punishment" so as to raise a privilege in a witness against giving testimony criminatory as to an offense cognizable in the juvenile court? People v. Lewis, supra, does not discuss precisely the same question as is here raised, but the case holds of necessity that the action of the juvenile court is not punishment and that testimony making a witness amenable only to the juvenile court is not self-incriminating. The statutes there quoted show that the conception of the juvenile court is similar to the one expressed in Mill v. Brown, supra, characterizing our own system of handling juvenile delinquency. A boy was suspected of having stolen $12 and was brought into juvenile court where, in response to questions, he confessed fully and frankly and was committed to a state school for boys. The court remarked that [page 354]:
"If the hearing here had been a criminal trial, its sole defect would have been the failure to warn against self-incrimination. But it was not a criminal trial and there was no defect."
The court considered the matter fully and concluded that there was no error in the commitment. The opinion seems *Page 312 to rest partly on the basis that the proceedings before the juvenile court "was not a criminal trial" and therefore the witness could not claim the privilege vouchsafed by the New York State Constitution, Article 1, Section 6, which provides that:
"No person shall * * * be compelled in any criminal case to be a witness against himself."
But such a constitutional provision is uniformly interpreted to give protection to a person in any court proceedings, criminal or otherwise. People v. Cummins, 153 A.D. 93, 138 N.Y.S. 517, affirmed 209 N.Y. 283, 103 N.E. 169; Fross v. Wotton,3 Cal. 2d 384, 44 P.2d 350; Wigmore, op. cit., Sec. 2252. Therefore the result would have been the same in People v. Lewis, supra, if the proceedings had been criminal, and the true reason for allowing the privilege must have been that self-exposure to juvenile court action was not self-incrimination.
It should be noted that this decision was five judges to two. The dissent is quoted at length by the applicants here, at pages 36-40 of their brief and they rely almost exclusively on that dissent to establish their position. Nevertheless, I think the majority view was in harmony with and recognized the underlying principles and purposes applicable to juvenile courts. Our opinion seems to ignore them. I therefore dissent from the conclusion that the witness in this case could be found guilty of a crime and furthermore that the fact that her answers might subject her to the supervisory jurisdiction of the juvenile court permitted her to claim the privilege. For reasons earlier above set out, I concur in the result.