In State ex rel. Kennon v. Hanley, 249 Wis. 399, 401, 24 N.W.2d 683, 684 (1946), this court specifically upheld the closure of a preliminary examination in a sexual assault case.Summary of this case from Stevens v. Manitowoc Cir. Ct.
September 13, 1946. —
October 22, 1946.
APPEAL from an order of the circuit court for Milwaukee county: DANIEL W. SULLIVAN, Circuit Judge. Affirmed.
For the appellant there was a brief by Torphy Torphy and George A. Bowman, all of Milwaukee, and oral argument by Mr. Bowman and Mr. Thomas E. Torphy.
For the respondent there was a brief by the Attorney General, William A. Platz, assistant attorney general, William J. McCauley, district attorney of Milwaukee county, John S. Barry, deputy district attorney, and Benjamin J. Wiener, assistant district attorney, and oral argument by Mr. Barry and Mr. Platz.
Petition for writ of habeas corpus to the circuit court for Milwaukee county on May 9, 1946, by Louise D. Kennon for and on behalf of her husband, Henry M. Kennon. From an order quashing the writ and remanding relator to the custody of the sheriff, relator appeals.
Henry M. Kennon was charged with unlawfully, wilfully, and feloniously knowing and abusing one I., a girl seventeen years of age, on the 13th of March, 1946. The preliminary hearing was had on May 1, 1946, before Hon. HARVEY L. NEELEN, judge of the district court of Milwaukee, and the relator was bound over to the municipal court for trial.
At the preliminary examination the judge ordered the courtroom cleared of all spectators. I. was called as a witness on behalf of the state. She asked the magistrate if she was compelled to testify and was informed that she must. When asked by defendant's counsel to advise her of her constitutional rights, the court ruled that as she was a juvenile she was not subject to prosecution for crime and no constitutional rights would be violated. She was hesitant about telling the court of the events in question and a recess was had after which she testified that she and the defendant had intercourse. Regarding her hesitancy the examining magistrate said: "Let the record also show that it wasn't a case where the girl refused' to answer, but the girl was emotionally upset and was crying and did not answer."
There was evidence given by police officers of the finding of a contraceptive and evidence of an admission by Kennon that he had used it.
It appeared from the evidence produced at the preliminary hearing that the relator had been a lecturer to the Nature Study Club to which I. belonged; that he had charge of the zoo at Washington Park; that she went to his office at the zoo frequently; that on a night in the middle of March, 1946, she had gone there to type some notes; that he came in later, about 9 o'clock, and they went upstairs where he "made love to her;" that a police officer on the evening of March 13th, found a freshly used contraceptive in a small room on the second floor; that both Kennon and I., after questioning by police officers on the night of March 30, 1946, admitted to them that they had had sexual intercourse. It appears that such an act occurred in the month of March.
The district court bound the defendant over to the municipal court of Milwaukee county for trial.
Petition for a writ of habeas corpus was made to the circuit court for Milwaukee county on May 9, 1946. A motion to quash the writ was granted, and defendant remanded to the custody of the sheriff. From that order relator appeals.
Relator contends here as is set forth in the petition for writ of habeas corpus: That, (1) his constitutional rights were invaded by the order clearing the courtroom of spectators during the preliminary examination, and (2) that there was not sufficient evidence to warrant holding him for trial, inasmuch as the testimony of I. was involuntary.
Sec. 7, art. I, Const., guarantees that: "In all criminal prosecutions the accused shall enjoy the right . . . to a speedy public trial by an impartial jury. . . ." But this does not guarantee the public nature of proceedings that are not trials. It has repeatedly been held that preliminary examinations are not trials. State ex rel. Durner v. Huegin (1901), 110 Wis. 189, 239, 85 N.W. 1046; Thies v. State (1922), 178 Wis. 98, 103, 104, 189 N.W. 539; Scott v. State (1929), 198 Wis. 192, 223 N.W. 450. Furthermore, sec. 361.15, Stats. 1945, specifically provides that "On the preliminary examination of every person charged with the offense of rape . . . or other offense against chastity, morality or decency it shall be in the discretion of the magistrate to exclude . . . all bystanders and other persons not officers of the court or otherwise required to be in attendance."
In connection with the second contention of the relator, the circuit court properly emphasized that weight should be given to the finding of the magistrate that I.'s testimony was not involuntary, but that her hesitancy was because she was emotionally upset.
Assuming for the moment, however, that her testimony was involuntary and obtained by coercion, it did not result in a contravention of the constitutional rights of the appellant. No right of his was invaded by the court's request that she answer the questions asked her. In this case I. was not a party and she was not being compelled to be a witness against herself. The privilege is that of the witness; the objection must be taken by him on his oath after the question has been asked; and it cannot be raised by a party to the suit or by an attorney. In State v. Van Winkle (1890), 80 Iowa, 15, 20, 45 N.W. 388, the court said:
"The only reason for excluding this testimony is that the witness claimed his privilege. Had he waived his privilege, and testified, the defendant had no grounds for objecting. If his privilege was denied him wrongfully, the wrong was to the witness, and not to the defendant, and the testimony was admissible as to the defendant, though it might not thereafter be used against the witness."
If a witness makes the claim of privilege and it is improperly disallowed by the court, it is not reversible error. Jones, Commentaries on Evidence, p. 4940, sec. 2496; Morgan v. Halberstadt (2d Cir. 1894), 60 Fed. 592; Taylor v. United States (2d Cir. 1907), 152 Fed. 1. In State ex rel. Hopkins v. Olin (1868), 23 Wis. 309, the rule was stated less specifically and may be said to have held to the contrary, but the question was again before the court in Ingalls v. State (1880), 48 Wis. 647, 655, 4 N.W. 785, and it was said:
"The objection to the introduction of testimony charging the witness with an infamous crime is one which must be taken by the witness himself, and not by the party for whom he is called. It is a personal privilege, and not a right of the party calling him."
Inasmuch as she was a minor, no proceedings for prosecution were to be brought against her. She was being asked to testify against someone else. Her case is not analogous to those presented in Hoyer v. State (1923), 180 Wis. 407, 193 N.W. 89, and State v. Warfield (1924), 184 Wis. 56, 198 N.W. 854, relied on by counsel for the relator. In those cases the constitutional rights of the defendants themselves were invaded by unlawful search and seizure and evidence thus obtained was used against them. Here the testimony, even if it were given under compulsion, as it appears it was not, is not being used to incriminate the one providing the testimony.
By the Court. — Order affirmed.