Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-03-28
SUPREME COURT
Continued from page 6.)

10 4
a witness only such protection as the
plain letter of the constitution con-
fers. If this is not the proper con.
struction the witness might be requir-
ed to disclose circumstances that
would enable the public prosecutor tc
institute criminal proceedings against
him wherein he might be convicted
without reading his evidence taken
in another case"
The following cases, with many 9TH
ers. sustain this construction of this
constitutional provision, and that wit,
| nesses cannot be compelled to answer
questions, the answer to which would
tend to incriminate them, unless
employed as night
granted complete immunity from pro-
secution: Boyd VS.. U. S. 116 U. S.
GIG; Brown VS. Walker, ISL, U. S.
SOL; Hale VS.. Henkel, 81 U. s. 43;
Smith VS.. Smith, 116 N. c. 1856; State
vstl Murphy, 1913 Wis 2O1; State VS..
NOVEL;, IS N. H. 314; ex parte Carter,
166 Mo- GOA; Miskimmins VS.. Shaver
So Pac. (Wyo.) Ali; ex parte Clark
103 Cal. 352;; Samson VS.. Boyden, 100
Ill. S13; State VS.. Burrell, q Mont.
1882; in re Scott, IS Fed. S15; in re
Shere, ia Fed. 2O7; People VS.. Sharp.
LOT N. Y. 427; People ex rel. Akin VS..
Butler st. F. & I. Co., POI Ill. 236;
State VS.. Gardner 6S Mimi, 100; FL
lott on ev. section 1O11 and cases
cited.
It follows that section 1888 supra
infringes on article 13 of the consti.
tuition and is, therefore, void. 1t does
not grant immunity as extensive as
that contemplated by the constitutions
al guaranty. The legislature is not
vested with authority or power to
abridge the constitutional guaranty
embodied in said section 49,.
It is strenuously urged by the state
that said section 1888 should be up
held upon the grounds OF public poll
cy. It is advanced as reason in ia
vor of that contention that no wit
ness, innocent Of crime, need ever
claim his privilege and that the con
stitutional provision should be strict
1x, 81, 10 ~,
enforcement of the laws. If our in
depreciation of the true moaning of
this constitutional provision were to
have the effect of obstructing the en-
forcement OF the criminal statutes,
it would be indeed regrettable, but
the remedy for the evils described
should not be invoked through deni-
al to any person of plain constitu-
tional privilege thoroughly intrenched
in our jurisprudence from the EARL.
est days. The remedy must come, if
the evils are real, through legislative
or constitutional amendments, and not
through the courts, who have a duty
to give effect under established rules,
to constitutional and legislative en-
actments according to the intent of
the trainers.
This disposes Of the only question
raised on this application. We have
purposely avoided saying anything
concerning questions sometimes aris-
ing in connection with cases like the
one under consideration. These 9th
er questions may some time in the
future arise when it will be necessary
to decide whether the court Of the
witness is to determine whether an
swers to certain questions will have
a tendency to criminate the witness,
and whether under other circumstan>
ces the witness will be entitled to in
sist on his privilege.
It follows that the writ must be is
sued.