Printz v. Cheeney & Street , 11 Iowa 469 ( 1861 )

•-.-Baldwin, J.

The plaintiff, upon the trial of this cause in the District Court, in order to prove the defendants, liability to him in trespass, in tearing down and carrying away a log house, introduced as a witness one Josiak Kinther, and asked him to state, if anything, what he knew in regard to any person’s tearing down and carrying away the property in controversy. The plaintiff also asked the witness to state what he knew about the defendants’ tearing down the house in controversy and carrying it away; and to state all the said defendants did about tearing down and carrying off said house. Several other questions of like import were pro-pounded to the witness by the plaintiff, each of which the ■witness refused to answer, claiming that his answers thereto' would tend to criminate himself. The court held that he-was not required to answer the same; and this ruling of the court is the first error assigned.

The rule is well settled that where it reasonably appears that the answer of a witness will expose him to a penal liability, to a criminal charge, or to any kind of punishment, he is not compelled to answer. “If it is one step having a tendency to criminate him, he is not compelled to answer.”' 16 ves. 242. C. J. Marshall, in the Burr trial said, “that many links frequently compose the chain of testimony which is necessary to convict an individual of a crime, and the true sense of the rule is that no wit-' ness is compellable to furnish any one of them against himself. Neither is it required of a witness to show in what manner he would'be criminated by his answer. If the witness is obliged to show how the effect is produced,' the protection would at onee be annihilated. The means' which he would be in that case compelled to use to obtain protection, would involve the surrender of the very object for the security of which the protection was sought. 4 Wend. 252-8-4. The act of defendants for which the’ plaintiff sought to recover, is a criminal offense under our statute, and the question asked tended to obtain from the witness certain facts which would prove that he was present and aided in the commission of the offense. An answer directly given to the questions propounded by the plaintiff might not have implicated the witness; but when once answered the right of defendants to a cross-examination to test the truth of such answer, might have compelled the witness to state some fact that would have been a link in the chain of evidence that would criminate him., In the case of Richman v. The State, 2 G. Greene 532, the question there asked the witness could have been answered without criminating him, and the court properly held that he was not privileged from answering the same. The questions asked by the plaintiff in this case are different, and the court did not err in protecting the witness from answering them. '

The second error assigned is that the court erred in giving the following instructions, viz: “ The naked deed of the plaintiff given in evidence, unaccompanied by other evidence to show title in plaintiff to the locus in quo is not of itself sufficient evidence for the plaintiff to maintain his action of trespass; but if the evidence, in addition to the plaintiff’s deed, shows that the plaintiff was in the possession of the premises at the time of the alleged trespass, then no further evidence of title is necessary; unless the evidence has shown to you that the plaintiff was in the possession of the premiises, you must find for the defendants, because the naked deed unconnected with other evidence is not proof of title.”

. The plaintiff in his petition alleges that the defendants entered upon his close situated in a certain township and county, and did there tear down, destroy and carry away certain property. The defendants deny that they entered plaintiff’s close, and deny the trespass, &c., as charged in the petition. The right of plaintiff to the possession of the property described in the deed is not denied, nor is there any adverse claim thereto made by defendants. We understand from this instruction that the court directed the jury, that proof of title alone was not sufficient evidence to 'show possession in the plaintiff, that the plaintiff must show not only title, but actual possession under such title, before he can maintain trespass.

Under the issue made in this case we think there was error in this instruction. If the plaintiff had title in the land this is evidence of ownership, and the right to possession follows, especially where there is no adverse right. Where the plaintiff is in constructive possession he can maintain his action of trespass. 2 Greenl. Ev. section 614; Dorcey v. Patterson, 7 Iowa 420; Terpenning v. Gallup, et al, 8 Ib. 74. See also, Mason v. Lewis, 1 G. Greene 496, and authorities cited. This instruction being erroneous upon the authorities above cited, the judgment is reversed.