The record-union., 1897-06-27


citizen of the commonwealth. Under
the benign and humane provisions of
our organic laws, both national and
State, no person can be forced to con-
vict himself from his own mouth, and
When accused before any tribunal, hav-
ing power and authority to inquire into
any conduct which might involve his
liberty or forfeiture of the right to
hold a public office to which he has
been elected, and to start or consum-
mate a criminal prosecution against
him, he must be let absolutely alone
so far as his own words concerning the
transaction are concerned, unless he
voluntarily presents himself for the
purpose of making statements which
might or might not satisfactorily ex-
plain the matters concerning which he
Is thus accused. 1t is argued that,
having been subpenaed before the
Grand jury, they were told that they
could testify or not, just as their judg-
ment suggested-a course which is
guaranteed to them by the Constitution
and not by any Grand Jury, court or
other tribunal established for the ad-
ministration of the law-and that hav-
and under such circumstances testified,
they cannot complain because they did
not exercise their right of refusal to
so testify. But, as was aptly suggest
ed by one of the counsel, testimony
more potent and effective can some
times be given by a defendant against
himself, when accused of a public Of
Tense, by his silence or refusal to tes-
THY. For example, a defendant in
the trial of a criminal case may not go
on the witness stand at all This is
right which he may or may not ex-
erclse, just as he deems proper Under
SUCH circumstances the court is obliged
to give an instruction to the jury that
the fact that the defendant did not
take the witness stand must not be
considered against him by them We
all Know, as matter of common
knowledge, that such an instruction is
lneffectlVe If there is any sort of a
case against the defendant. Jurors
will argue that. if he was not guilty of
the offense with which he is charged,
he would have taken the witness stand
and explained certain discriminating
testimony against him. How much
soning is in the case of a person ac-
cused before Grand Jury, whose ex-
aminations of charges are ex parte in
their nature and where the accused is
not represented by counsel, and where
there is no Judge or court present to
instruct them in matters of law bear
ing upon each particular case under
consideration.
So jealous are the courts of this
country in protecting persons who are
accused or might be accused in the
right thus guaranteed TO them by the
Constitution that they have held in nu-
merous cases that even in a civil pro-
ceeding a witness cannot be made to
answer any question, the answer to
Which might be made the foundation
of criminal action against him. In
our own State 1T has thus been held.
In the case of ex parte Clarke, lob Cal.
3d. in which the petitioner had been
an insolvent debtor, his as
signee in insolvency filed a petition
charging him with having concealed,
conveyed away and disposed
of property which should have been
turned over to said assignee for the
benefit of his creditors, upon which a
citation was issued commanding him to
appear before the Superior Court to be
examined touching the matters alleged
in the petition. He appeared before the
court in response to the citation and,
being sworn and questioned concerning
the matters alleged in the petition, de-
clined to answer the questions upon the
ground that his answers might result in
a criminal prosecution against him.
The Supreme Court of this State, re-
ferring to Section 154 of the Penal
Code, providing that every debtor who
fraudulently removes his property or
effects out of this State or fraudulently
sells, conveys or assigns or conceals his
with intent to defraud, hinder
or delay his creditors of their rights
claims or demands, is punishable by
etc, held that to have
forced the petitioner to answer the
questions propounded to him concern
sition of them would be a violation of
the Constitution, which provides that
no person can be compelled, in a Grim
inal case, to be a witness against him
self, and uses the following language:
ITO bring a person within the i'm
munity of this provision speaking of
the constitutional provision referred to)
it is not necessary that the examination
should be attempted in a criminal pros
ecutiOn against the witness, or that
such prosecution should have been
commenced and actually pending. 1t
is sufficient if there is a law creating
the Offense under which the witness
may be prosecuted. If there is such a
law under which the witness may be
indicted or otherwise prosecuted for a
public offense arising out of the acts to
which the examination relates he can
not be compelled to answer in any coll
lateral proceeding, unless the law alb
solutely secures him against any use,
in a criminal prosecution, of the evil
dence he may give, and this can only
be done by a provision that if he sub
mits to the examination and answers
the questions, he shall be exempt from
any criminal prosecution for the Of
fense to which the inquiry relates"
This same questionwas treated by the
Supreme Court Of Illinois. "Cornering
the grain market is a crime under the
statute of that State. Lampson Bros.
& Co. brought a civil suit against Boy
den & Co. to recover damages which
they claimed to have suffered by rea-
son of the action of the defendants in
creating a corner" in corn in Novem-
Der, 1889, whereby the plaintiffs were
compelled to pay fifty-eight cents
bushel for that grain when the fair or
natural price was but thirty-two cents
bushel. On the trial the plaintiffs at
tempted to make the defendants give
evidence showing that they had cor
nered the market. The Judge declined
to compel the defendants to testify