The record-union., 1896-05-10
compelled in any criminal case to be a

cOmpelled IN any criminal case 10 De q
witness against himself 3"
| In behalf of the prosecution the prin-
cipal answer to the motion to quash the
indictment on this ground is that no
compulSion was exercised in eliciting
such statements as the prisoner made.
After she reached the Grand Jury room
| the District Attorney refused to ask
her any questions himself, and told her
that if she answered any questions 1t
might hurt her. However, according to
the minutes, she did answer few ques-
tions freely, being in the room perhaps
five minutes. 1t does not appear that
she was sworn The privilege
of a defendant in a criminal case to
testify in his own behalf is one which
cannot be forced upon him. If he be-
comes a witness, 1t must be by his own
act, voluntarily, and without constraint
put upon him by any officer or agency
Of the law. That this is the rule in
criminal cases there can be no doubt. In
my opinion no less stringent rule is ap-
plicable to the investigation of charge
| against a particular person by a Grand
Jury.
The power of the Grand Jury to cause
1
If they believe it is within reach, must
| be exercised with reference to the limi-
tation that SO far as the accused is con-
cerned against whom the complaint is
made before them and against whom
| their inquiry is directed, he should not
| even be required to attend as a witness
| before them, unless of his free will, best
made certain by his own request. 1t is
not pretended that the appearance of
| this defendant before the Grand Jury
was in any sense voluntary on her part.
| 1t Is true she was cautioned by the Dis
| trict Attorney as to answering, but
there could have been no reason evident
to her why she should heed this advice,
| rather than respond to the interroga-
tories of the Grand Jurors, who were
apparently invested with equal author
| 1ty 1 am satisfied upon a
careful consideration Of all the circum-
stances that this prisoner was compelled
| by the Grand Jury to give evidence
| against herself before that body when it
was investigating a charge against her
and that the Indictment should be
quashed on that ground
No precedent has been cited, nor am I
aware of any, for the action of the
Grand Jury in thus subjecting an ac-
cused prisoner to interrogations.
| The practice is too dangerous to be
sanctioned without express legislative
authority. "They have no right" says
| Lord Camden, without an Act of Par
lament, to adopt a new practice in
criminal law, which was never yet al
| lowed from all antiquity" (Entick 10
| Camington, 19 Howards ST. Tr 10, %. }
The duty Of the court to be watchful
of the constitutional rights Of the citi-
zen and to guard against stealthy en-
croachments thereon, is emphasized by
the Supreme Court Of the United States
| in the BOYD case (alredy cited). OF
| the course pursued by the Grand Jury
| in the present case, we may we'll say
| what Justice Bradley said there: TT
| may be that it is the obnoxious thing
| in it's mildest and least repulsive form
but illegitimate and unconstitutional
practices get their first footing in that
| way, namely, by silent approaches and
slight deviations from legal modes of
procedure. This can only be obviated
by adhering to the rule that constitu-
tional provisions for the security of
person and property should be literally
construed. A close and literal construc-
| tion deprives them of half their eff
caoy, and leads to gradual deprecia-
| ton of the right The logic of the
doctrine enunciated in this case is so
| clear that no mistake can be made in
adopting the rule, which was adopted
in the case of the People VS.. Haines, 6 N.
Y. Criminal Reports, 100, in which case
the principle is also declared that even
If the statute Is silent as to the rights of
an accused person testifying before a
| Grand Jury, when such defect invades
constitutional right, the court is
| bound to take notice of It, and even If
the statute seems to preclude the rails
| ing of the objection.
In this case the defendant was SUBJ
penaed to attend before the Grand Jury,
and in pursuance thereof did attend be-
fore them without counsel, and after
being sworn, gave evidence in the in
Vest1gation of the charge against him
self, and answered questions pro-
pounded to him by the Grand Jury.
and the court said:
| ''The evidence of the defendant. taken
| before the Grand Jury under the cir
cumstances stated, was clearly not only
Il,
and inasmuch as the Code of Criminal
Procedure provides that the Grand Jury
HAS no right to receive any but legal
evidence which would be admissible
upon the trial, upon this, as we'll as the
other, the Indictment should be
quashed."
| A still stronger case is that Of the
State Of Minnesota VS.. F,roiseth. 16 Min
nesota Reports, 1885, in which the court
held that When a defendant is re-
Guired by the Grand Jury to testify
| touching criminal charge against him.
| pending before them, and in pursuance
OF such requisition does testify before
them touching such charge, the indict-
ment for such offense returned by the
Grand Jury will be set aside"
| In another equally strong case, l. e..
| Boone VS.. the People, 14S Illinois Re-
ports, page 44S, the court says: THE as
| signment of error first alleged is in over
ruling defendants motion to quash the
| indictment, which was based on the
| fact that defendant was taken from the
| Jail and examined as witness before
the Grand Jury that found the indct-
nient against him, and was compelled
| to testify before said Grand Jury re-
garding his guilt or innocence" ct will
| be observed that in this, as in all the
other cases where the court has used
the term compelled to testify" it con-
cluded that the parties were COM
| PEELED" to testify because they were
taken before the Grand Jury by legal
| process, and were questioned. This was
the only cornpulsion used in any of the
| cases) THE motion is supported by