The record-union., 1896-05-24


person shall be compelled, in any crimi-
nal case, to be a witness against him
self.
Removal from Office under the sum-
mary proceeding provided for by Sec
ton ~. supra, is a punishment for
| wrong-doing by the class Of officers des
ignated in Chapter IL of Title Of Part
of such CODE
There are two methods of prosecu
tion for willful or corrupt misconduct
in office provided by Chapter II.
One is an accusation in writing pre-
sented by the Grand Jury stating the
| offense charged in ordinary and con-
else language, under which the ac
cused is entitled to, and must be tried
by a jury, and, upon conviction, the
| Judgment is that the defendant be re-
| tions 75S-70)
The other method Is the summary
method provided by Section 772 of the
same chapter, supra.
In all essentials of cause and effect
| the latter is a criminal proceeding
equally with the former. The proceed
| ing is a nondesoript, but resembling
solnwhat a qui tam action
| But whatever It's garb, it is in body
| and spirit in it's aim and object pro-
cess for the punishment of crime.
When the Constitution declares that no
person shall be compelled in any crimi
nal case to be a witness against him
self, it must be construed to apply to
all cases in which the action prosecuted
| is not to establish, recover, or redress
| private and civil rights, but to try and
/ raJ1Y iSh o1,op
mission of public offenses.
| A criminal case is an action, suit or
cause instituted to punish an infrac-
| tion Of the criminal laws, and with this
| object in view it matters not in what
form a statute may clothe it, it is still
criminal case, and the person charged
/ therein is protected from being an en-
forced witness against himself by the
aegis of the Constitution, National and
| State.
| This whole question was considered,
and, as we think, set at rest by the Su-
preme Court of the United States, in
Boyd VS.. United States, 116 Z. S. 616.
| The proceeding was one in rem to es-
| tablish the forfeiture of certain goods
alleged to have been fraudulently i'm
ported without paying the duties there
on, pursuant to an Act of Congress.
The law authorized the court, on mo-
ton of the Government attorney, to re-
quire the defendant to produce in court
his invoices, etc, or upon failure to do
so, the allegations of the prosecution as
| to their contents were to be taken as
| true.
The court made an order accordingly,
and the defendant produced the invoice,
but excepted to the action of the court
upon the ground that the Act of Con-
| greSs was in violation of the Constitu-
tion
Bradley j., in an elaborate opinion re-
versing the judgment, after stating that
under the Act the prosecution might
have proceeded by indictment against
the defendant, proceeds as follows: IF
the Government prosecutor elects to
waive an indictment and to file a civil
| information against the claimants-that
| is, civil in fOrm-can he, by this device,
take from the proceeding it's criminal
aspect and deprive the claimants of
| their immunities as citizens and ex-
| tort from them a production Of their pri-
| vate papers, or as an alternative a con-
fession Of guilt? This cannot be The
information, though technically a civil
proceeding, is in substance and effect a
| criminal one"
The court adds: I'VE are further Of
opinion that compulsory production Of
the private books and papers of the
owner of goods sought to be forfeited in
such suit is compelling him to be a
witness against himself, within the
meaning of the fifth amendment of the
Constitution"
In the later case of Lees vs. United
| States, $50 U. S. 476, which was a civil
action in form, to recover a penalty for
importing an alien under a contract to
perform labor, ETC., the defendant was
called and compelled to give evidence in
favor of the Government.
Justice Brewer in disposing of this
branch Of the case, said: This, though
an action civil in form, is unquestion-
ably criminal in its nature, and in such
a case defendant cannot be compelled
to be a witness against himself. 1t is
unnecessary to do more than to refer to
the case of Boyd VS.. United States.
supra, etc.
1t follows that the action Of the court
in requiring the defendant to give tes-
timony against himself was in violation
OF the right guaranteed to him under the
Constitution.
The law is so clearly laid down in this
case that my duty to grant the motions
to quash and set aside the said accusa-
tions cannot be doubted, and it is there
fore ordered that each of said accusa-
tions be, and the same are hereby
quashed, vacated and set aside, and that
said accusations and the subject mat
| ter thereof be referred to and resub-
| mitted to the next Grand Jury to be en-
paneled in Sacramento County for its
consideration.