The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1894-11-25


repealed; If the witness has been tried LOT
the otfeuse and acquitted, or II convicted
mas satisfied the sentence OF the law; IL
the oHense has been barred Dy the Statute
OF limitations and there Is no pending
prosecution against the witness, ne can
not claim any privilege under tnis pro
VISION OF the constitution, since ms testl-
mony could not be used against him In any
criminal case against himself. and conse-
quently ne is not compelled to De witness
against himself
Equally is he deprived Of claiming this
exemption from giving evidence IL we
Legislature has declared that be snail not
be prosecuted or punished Tor any offense
OF wnlcn ne gives evidence. any evidence
that he may give under such statutory
erection Will n ot be used against DlmseI,
ior the reason that by the very act OF Civ,
ing the evidence he becomes exempted
from any prosecution or punishment Tor
the offenSe respecting which his evidence
is gwen. lie Is net In such case compeleo
to give evidence hich may be used against
hlmselI IN any criminal case, for tDe reason
that the Legislature has declared tnat
there can be no criminal case against nun
which the evidence which he gives may
tend to establish"
Then follows section SO of the purity OF
elections law. recited by the court as FOL
lows: "A person offending against any
provision OF sections (enumeratlug certain
sections oil the acO is competent witness
against another person so Offending. ana
may be compelled to attend ana testify
upon any trial, hearing, proceeding or
lawful investigation or judicial proceed
Ing, IN the same manner rs any otner per-
son. Bnt the testimony so given Snail not
be USED IN any prosecution or proceeding
civil or criminal, against the person SO
tesutying. a person so tesillylpg shaIl
not tnenceafIer be liable to indictment or
DTRSpntmAnt nv in for ct tn prose-
cution or punishment fer the offense win
reference to which his testimony was
gwen, and may plead or move the giving
OF testimony accordingly IN bar OIL sucn
Indictment information or prosecution.
The court discusses the law oil the sec
ton and says: "a statute is TO De con-
strned with reference to its manifest OBJ
ject, except as such object may be de-
teaed by the language of the statute itself:
me language used is not 10 De enlarged
beyond its ordinary construction 1or the
pur. ose OF etfecting such ohJ'ct, nor, on
the other hand, is 1t 10 receive such.
technical or limited construction as Will
defeat the manifest purpose of the statute.
Ii the language is susceptible OF two con-
structiops, one of which Will carry out and
the other will defeat such manifest object,
1t should receive the former construction.
so. too, II statute is susceptible OIL TWO
constructions. one of which is consistent
nant thereto, it should be so construed as
to be effec i've rather than void. Any
statute involving a personal privilege or
right conferred upon an individual by the
constitution is to be literally construed 10
favor of the Individual
The manifest object Of section 81 afore-
said is to secure evidence for the conVic-
ton of offenders against the provisions Of
the other sections of the statute which are
enumerated therein: but it is only upon
trial, hearing, prosecution, lawful inveStl-
CATION or judicial proceeding against an
other person for offending against the pro-
visions OF those enumerated sections, that
a witness who has himself offended against
these provisions of the sections can be
compelled 10 testify.
"By the provisions of this section the
petitioner has the full protection guarau-
teed him by the constitution against any
self-accusatlol Of crime. The
immunity thus given includes not only the
offenSe with which the defendant then
under examination is charged. and in
which the witness was participant with
such defendant, but also any other offense
with which the witness may be charged,
and to which such testimony may have
reference, or which il may tend to estab-
lish. The statute purD0rts TO compel hin
to testify In the same manner as any
other person, and is thu equivalent.
for his constitutional protection gives him
legislative protection of equal scope and
effect by exemptlng him from all liability
TO punishment for he Offenss with refer
ence TO which he testifies. The exemption
Is as broad as the complaint, and the pro-
lection is equal TO that given by the con-
stiiuti0n. The testimony which he may
be compelled to give is the same as that
which could be requiredeof any other wit
ness, and includes any matter within his
knO Wedge which is relevant to the Of
Tense under investigation and material to
i is determin alton. If in giving such tes Ill
mOny the testimony has reference 10
another offense. committed by himself, he
Is within the protection o. tie statut",
and upon any prosecution for such offeDse
is authorized TO plead or prove in bal
thereof thai, under the compulsion of Thu
section, he gave testimony with reference
to such otfeuse.
1--WE hold, therefore, that the petitioners
should have answered the questions pro.
pounded to him, and that he was rightly
adjudged guilty of contempt in refusin 3
to answer them.
The writ is discharged ana the peti.
flOner renamed. HARRISON, j.
1--WE concur: GARoTTTE. j.
MCFARLAND, j"
1t will be observed that the above de.
clsion does not throw much light upon the
other point raised by the counsel in the
case OF the four accused election Ulcers
Cohen was released on bail pending the
action OF the Supreme Court in his case
Judge Wallace's Court did not sit yester
Day ami up 10 late hour last night Cohen
had not been rearrested.