Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-03-28
BY
WALDO PONDRAY WARREN

witness was not asked any question
that would infringe upon his consti-
tutional rights as laid down in section
Is of the constitution, which provides
that mo persons shall be COM
PEELED in any criminal case to be q
witness against himself" The rea
son advanced for this contention is
that section 1888 R. c. 1905, grants
to the witness sufficient immunity by
reason of answering such questions.
although the answers may tend to in.
criminate him. The said section il
as follows: mo person shall be ex
cused from testifying concerning any
offense committed by another against
any of the provisions of this chapter
by reason of his testimony tending to
criminate himself (the witness) but
the testimony given by such person
shall in no case be used against him.
The petitioner, in answer to the
states contention, that said section
grants him adequate protection bys
reason of the discriminating tendency
of his answers, claims that the protec-
ton afforded by the statute is re-
stricted to the one fact that his an
swers cannot thereafter be used
against him. His contention is that
before he is compellable to answer,
the statute must grant him absolute
and unconditional immunity from pro
secution for any offense that may j
any way be disclosed or uncovered by
or through his answers, and that it is
not an adequate protection to him
that his answers may not be used
against him, but that the constitution.
al privilege contemplates that facts
which may be thereafter disclosed by
the prosecution through, and based
| on his answers cannot be used against
him. He contends that the constitu-
ttional provision would be infringed
| if any answer given by him would lead
to other evidence against him, if such
evidence could be used against him,
although his answers could not Ii
other words. his contention is that in
no case is he compelled to answer
unless the state grants him immunity
from prosecution for the offense un-
der investigation and that immunity
is not granted unless the statute is
as broad as and coextensive with the
constitutional privilege. It is patent
/ that the efficiency of the constitutional
provision would be seriously impaired
| If facts disclosed by witnesses an
swers could be proven against him
| 1t is patent also that section 1888 sup
ra affords the witness no protection
from such other testimony, and that
the only immunity provided for there
in is that the testimony given" shall
not be used against him. The privi
lege guaranteed by this constitutional
provision relates to the personal lib
erty OF the citizen and it is now a
generally accepted principle that such
constitutional provisions should be
literally construed and given full
force, or the intent thereof will be
unavailing. If the witness is subject
to criminal prosecution after his an
swers have been given, where the pri
yilege has been rightfully and in good
faith claimed by him, it needs no
more than the statement of the fact
that the constitutional guaranty has
been violated although the statute
prohibits the use of his answers
against him.
Facts may be disclosed by the wit
ness capable of proof by other wit.
nesses that will fully show the wit.
ness's participation in or guilt of. the
crime charged.
In Henry Emery's case, 1O7 Mass.
172, the supreme court of Massachu-
sets in discussing the case of People
VS.. Kelly. "a N. Y. "A, said: "The
terms Of the provision In the consti-