Opinion
(Filed 19 April, 1904.)
Contempt — Witnesses — Const. U.S., Fifth Amendment — Code, sec. 1215 — Const. N.C. Art. I, sec. 11 — Gaming — Pardons.
Code, sec. 1115, requiring a witness to testify touching any unlawful gaming done by himself or others, is not unconstitutional by reason of the Fifth Amendment to Constitution United States, because it does not apply to the State; nor does it violate Article I, sec. 11, Constitution of North Carolina, for the reason that the said statute grants a pardon to the witness.
IN THE matter of R. G. Briggs, heard by Judge Frederick Moore, at September Term, 1903, of the Superior Court of WILSON County.
Robert D. Gilmer, Attorney-General, for the State.
John E. Woodard for respondent.
This is an appeal from a judgment for contempt from Moore, J., at February Term, 1904, Wilson Superior Court. In the case of State v. George Morgan, who was indicted for keeping a gaming house, (119) with a second count for playing cards for money in violation of chapter 29, Laws 1891, R. G. Briggs was sworn as a witness for the State. The solicitor asked the witness: 1. "Have you been in the defendant's room on the west side of Goldsboro street, in Wilson, N.C. within the last two years?" The witness stated that he declined to answer the question, on the ground that his answer might tend to incriminate him. Before the witness finally declined to answer this question, the solicitor asked him the following additional questions: 2. "Describe the room." 3. "Have you within the last two years seen a game of cards played in the defendant's room for money or other thing of value in which you did not participate?" 4. "Have you within the last two years seen a game of cards played in the defendant's room for money or other thing of value in which you did participate?" The witness declined to answer each and every of these questions for the reason first given. The Court being of opinion that under section 1215 of The Code the witness is not privileged from answering the questions and all pertinent questions relating to the charge against the defendant, but should be compelled to answer, informed the witness that he must answer the questions. The witness again declined to answer. Whereupon the Court adjudged the witness guilty of a contempt of court and imposed a fine upon him and ordered him in custody of the sheriff until the fine was paid. The witness excepted and appealed.
Section 648 of The Code provides that "any person guilty of any of the following acts may be punished for contempt: 6. The contumacious and unlawful refusal of any person to be sworn as a witness, or, when so sworn, the like refusal to answer (120) any legal and proper interrogatory."
The fourth question was, "Have you within the last two years seen a game of cards played in the defendant's room for money or other thing of value in which you did participate?" As already stated, the witness declined to answer, on the ground that his reply would tend to criminate him. The court being of opinion that under The Code, section 1215, the witness was not privileged from answering this or any other pertinent questions relative to the charge against the defendant, directed the witness to answer, and upon his refusal adjudged him in contempt and imposed a fine and ordered him into custody until it was paid, from which judgment and order the respondent appealed.
The Code, section 1215, is as follows: "No person shall be excused on any prosecution from testifying touching any unlawful gaming done by himself or others; but no discovery made by the witness upon such examination shall be used against him in any penal or criminal prosecution, and he shall be altogether pardoned of the offense so done or participated in by him." The respondent contends that this statute is unconstitutional, in that, (1) It violates the Fifth Amendment to the Constitution of the United States, which provides that "no person . . . shall be compelled in any criminal case to be a witness against himself."
We have already at this term, in State v. Patterson, 134 N.C. 612, called attention to the well-known historical fact that the first ten amendments were passed as restrictions solely upon the Federal Government and courts, and that the United States Supreme Court has uniformly held that they do not apply to the State governments or courts. In Barron v. Baltimore, 32 U.S. 243, Marshall, C. J., referring to the first eleven amendments, said: "These amendments contain (121) no expression indicating an intention to apply them to the State governments. This Court cannot so apply them." This, repeatedly and uniformly, has been so held by that Court ever since, and among the cases are Peryear v. Comrs., 72 U.S. 480; Twitchell v. Comrs., 74 U.S. 325; U.S. v. Cruikshanks, 92 U.S. 552; Presser v. Ill., 116 U.S. 265; Spies v. Ill., 123 U.S. 166, in which it is said that it is well settled that the first ten amendments to the Federal Constitution were not intended to limit the powers of the States. Hollinger v. Davis, 146 U.S. 319, and numerous other Federal and State decisions collected in 3 Rose's Notes to the U.S. Reports, 368-372, and 6 Ibid., 986, 987.
2. That the statute (section 1215) violates Article I, section 11, of the Constitution of North Carolina, which declares that no person shall "be compelled to give evidence against himself." The same point of alleged unconstitutionality has been repeatedly presented in State and Federal courts as to similar statutes, and the ruling has generally been that even where the statute merely provides that the evidence elicited from the witness cannot be used against him, he can be required to testify. State v. Quarles, 13 Ark. 307; Wilkins v. Malone, 14 Ind. 153; Ex-parte Buskett, 106 Mo., 602, 14 L.R.A., 407, 27 Am. St. Rep., 378, and cases therein cited; Kneeland v. State, 62 Ga. 395; People v. Kelly, 24 N.Y. 74.
There are cases which hold that he cannot be required to testify unless total immunity is guaranteed him, because clues may be discovered by the evidence which may be followed up to the prisoner's subsequent conviction without putting in evidence his declarations made when a witness. Smith v. Smith, 116 N.C. 387; Emery's case, 107 Mass. 172, 9 Am. Rep., 22. But when, as in our State, the statute (122) provides that the witness in such case shall have absolute immunity from punishment in regard to his participation in the offense as to which he has been required to testify, the rule is universal that he may be compelled to testify. Among the cases clearly stating this are Hirsch v. State, 67 Tenn. 89; Warner v. State, 81 Tenn. 52; State v. Nowell, 58 N. H., 314; People v. Foundry (1903), 201 Ill. 236. In our own State the point here presented was decided and the witness was required to answer in La Fontaine v. Underwriters, 83 N.C. 132, and State v. Morgan, 133 N.C. 743, in which last it is said that the witness "was properly made to answer the questions. The Code, section 1215." This was said as to another witness in this same case.
Though the Fifth Amendment to the United States Constitution does not apply to the State courts, that amendment is so nearly in the words of the similar provision in the State Constitution that the above distinction cannot be more clearly indicated than by reference to two well-known decisions of the United States Supreme Court. In Counselman v. Hitchcock, 142 U.S. 457, the protective statute (U.S. Rev. Stats., 860) was merely that "no evidence given by the witness shall be in any manner used against him in any court of the United States in any criminal proceeding," and it was held that the witness was not compelled to answer, for the statute fell short of the constitutional provision in that the disclosure of the circumstances, sources and means of the offense might be used effectually in a subsequent prosecution against the witness for his participation in that very offense, without using his answers on the witness stand as evidence against him on his trial. That case cites (p. 579) the decision in La Fontaine v. Underwriters, 83 N.C. 132, as based upon a statute (The Code, sec. 1215) giving such full and complete protection that the witness could properly be required to testify.
In Brown v. Walker, 161 U.S. 591, Congress had, under the (123) intimation in Counselman v. Hitchcock, supra, amended the law by chapter 83 (1893), 27 St., 443, which provided that the witness required to testify in the cases designated should not "be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matters or things, concerning which he may testify." This was held to give absolute immunity against prosecution for the offense to which the questions related and deprived the witness of his constitutional right to refuse to answer. The Court said (p. 595) that if this were not so, "the practical result would be that no one could be compelled to testify to a material fact in a criminal case, unless he chose to do so, or unless it was entirely clear that the privilege was not set up in good faith." The Court cites authorities (pp. 598, 599) that if prosecution would be barred as to the witness by the statute of limitation or a pardon he would not be privileged to refuse to answer, and says this statute gives him the same protection and deprives him of the privilege which he no longer requires for his protection.
Our statute, The Code, section 1215, is more explicit than the Federal statute passed upon in Brown v. Walker, supra. It provides that the evidence adduced shall not be used against the witness "in any penal or criminal prosecution, and he shall be altogether pardoned of the offense so done or participated in by him. In State v. Blalock, 61 N.C. 242, this Court sustained an act of the Legislature granting "amnesty and pardon," and speaks of "special pardons" and general pardons by legislative act. In State v. Keith, 63 N.C. at page 143, the Court recognizes again the validity of a pardon by legislative enactment, citing 4 Blk., 401, and Marshall, C. J., in U.S. v. Wilson, 32 U.S. 163, who state that the courts must take judicial notice of a pardon by act of Parliament because it is considered a public law, having the same effect as if the general law punishing the (124) offense had been repealed or amended. It was evidently held in State v. Blalock, and State v. Keith, supra, that Article III, section 6, of the Constitution, conferring on the Governor the power to grant reprieves, commutations and pardons, after conviction, for all offenses (except in cases of impeachment) "was not the grant of an exclusive power and did not deprive the General Assembly of the power to pass special or general acts of pardon, like the English Parliament, even before conviction." The same view is expressed in Brown v. Walker, 161 U.S. at page 601, which holds that a similar act of Congress "securing to witnesses immunity from prosecution is virtually an act of general amnesty and within the power of Congress, although the Constitution vests in the President 'power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.'" The Court further says, citing Knot v. U.S., 95 U.S. 152, that the distinction between amnesty and pardon is of no practical importance, and that the decisions in this country and in England, as to the legislative power to grant pardons, with one or two exceptions in this country, are unanimous in favor of their constitutionality.
The witness was properly required to answer.
Whether the ruling below on the facts of this case should be presented for review by habeas corpus or by appeal is a question not raised by any exception and we do not think we should discuss the point ex mero motu.
The judgment below is affirmed.