State v. Ober , 52 N.H. 459 ( 1873 )

Foster, J.

The questions are presented, whether a prisoner, who is sworn as a witness at his own request, can be compelled to answer questions, upon his cross-examination, as to facts tending to convict him, in relation to which he was not interrogated on his direct examination ; and whether, upon being permitted to refuse to answer such questions, upon the ground that his answers might tend to criminate him, such refusals may be commented upon by the State’s counsel, and be considered by the jury.

If the ruling that the prisoner had the right to decline answering had been correct, we should agree with his counsel that the subsequent ruling could not be sustained. But the first ruling was not correct. The respondent, by electing to testify in his own favor, waived his constitutional privilege. If he refuses to testify at all, the statute protects him from adverse comment or inference; but, if he avails himself of the statute, he waives the constitutional protection in his favor, and subjects himself to the peril of being examined as to any and every matter pertinent to the issue. This is expressly held in Com. v. Mullen, 97 Mass. 545, Com. v. Bonner, ibid 587, Com. v. Morgan, 107 Mass. 199, McGarry v. The People, 2 Lansing 227, and Connors v. The People, 50 N. Y. 240, decided in November, 1872, in which Church, C. J., delivering the opinion of the court of appeals, declares the principle controlling the case to be, that, by consenting to be a witness in his own behalf, under the statute, the accused subjected himself to the same rules, and was called upon to submit to the same tests, which could by law be applied to the other witnessesin other words, if he availed himself of the privilege of the act, he assumed the burdens necessarily incident to the position. The prohibition in the constitution is against compelling an accused person to become a witness against himself. If he consents to become a witness in the case voluntarily, and without any compulsion, it would seem to follow that he occupies, for the time being, the position of a witness, with all its rights and privileges, and subject to all its duties and obligations. If lie gives evidence which bears against himself, it results from his voluntary act of becoming a witness, and not from compulsion. His own act is the primary cause, and if that was voluntary, he has no reason to complain.

If the respondent had not seen fit to make himself a witness in his own cause, the fact that he did not choose to testify could not have been commented upon by the State’s counsel, nor would the jury have been at liberty to draw any inference detrimental to him from his silence. But, when he made himself a witness-in-chief, he subjected himself to the government’s right of cross-examination.

By electing to testify, he placed himself in the attitude of any ordinary witness, irrespective of any interest in the cause. As a party, his denial to answer a particular question, on the ground that such answer would tend to criminate him, could afford him no exemption from the inferences which would naturally attach to any other witness, not a party, in such circumstances. Norfolk v. Gaylord, 28 Conn. 309.

The fact that he is charged with a crime gives him certain special privileges. Among these are the requireznent of the State to prove the charge against him beyond a reasonable doubt; the constitutional prohibition of compelling him to accuse or furnish evidence against himself; the right to meet the witnesses against him face to face, and so forth.

With such exceptional advantages, he stands precisely like a party to a civil cause electing to testify in his own favor, and thereby subjecting himself to the ordinary ordeal of cross-examination, and comment upon his testimony and liis demeanor upon the stand.

In the present case, the government might well ask for a conviction upon proof not merely that he had knowledge concerning the liquor found on his premises on March 26, or that he had sold liquor to Mrs. Cofran, or that Hirsch had ever been in his employment,-or that he had ever sold liquors to a female, or that he had sold to anybody since he had been notified by a committee of citizens, six or seven weeks before the date of the indictment; but also upon proof that he had sold spirituous liquor at any time, and to any person, within one year previous to the finding of the indictment. Gen. Stats., ch. 99, sec. 27. Indeed, the only material question for the jury was, whether lie had kept for sale spirituous liquors at any time within the year, in violation of section 18 of the chapter.

His object in taking the witness stand was, to show himself innocent of this offence by testifying that he had not kept liquor for sale within the year; and putting himself in such a position, and declining to testify except to such matters as would tend to exculpate himself, refusing to answer the most direct, competent, and material inquiry raised by the case, was a matter of great significance, which it was the right, if not the duty, of the State’s counsel and of the court to bring prominently to the attention of the jury. See Andrews v. Frye, 104 Mass. 234.

It is undoubtedly a general proposition and a wholesome rule, that, if a witness declines answering a question on the ground that his answer will tend to criminate him, no inference of the truth of the fact is permitted to be drawn from that circumstance. 1 Greenl. Ev., sec. 451.

And the statute of 1869—1 Sess. Laws, ch. 23—allowing respondents to testify, and providing that no inference of guilt shall be drawn from their neglect to testify, is but an affirmance of this proposition. But it is also very clearly settled, that, in all cases where the witness, being advertised of his privilege to decline to answer, chooses not to avail himself of the privilege, but elects to answer the particular inquiry which he might have avoided, he is bound to answer every material question relating to the transaction. 1 Greenl Ev., sec. 451; The State v. K-, 4 N. H. 562; Coburn v. Odell, 30 N. H. 554, 555; 2 C. & H. notes to Phil. Ev. 736, 737.

The respondent was not bound to volunteer any statement concerning the matter of the charge against him, nor could he be compelled to disclose any fact or answer any question which would expose him to another criminal prosecution, or tend to convict him in this. Such immunity from confession, examination, argument, or prejudicial inference, was his undoubted privilege ; but he chosg to waive it, and insisted upon his right to testify; and, having testified concerning a part of the transaction, in which it was alleged that he was criminally concerned, without claiming his constitutional privilege, it was too late for him to halt at that point which suited his own convenience. It is clear, upon reason and authority, that he might have been compelled to answer the question propounded by the State’s counsel. It was material to the issue, if not directly involved in his own proffered testimony. At this point, for obvious reasons, he saw fit to close his lips, and the court allowed him to remain silent. Of this mistaken clemency he cannot now be heard to complain.

The whole argument of his counsel now proceeds upon the erroneous assumption that the ruling of the court was right. That assumption being groundless, his argument fails.

The views of so eminent a man as Judge Cooley seem to be adverse to those now expressed. He inclines to the opinion that a party accused of crime should be and is entitled, under statute of Michigan allowing the accused to give evidence in his own behalf, to disclose no more than he chooses — (“ if he does testify, he is at liberty to stop at any point he chooses, and it must be left to the jury to give a statement, which he declines to make a full one, such weight as, under the circumstances, they think it entitled to ; otherwise the statute must have set aside and overruled the constitutional maxim which protects an accused party against being compelled to testify against himself; and the statutory privilege becomes a snare and a danger.”) Cooley’s Const. Lim. 317;^* also p. 182.

_ The learned jurist does not furnish us with cases in support of his views, which, after such consideration of them as the great ability and learning of Judge Cooley compel, we cannot regard as being supported by authority or sound reason. But the statute of Michigan is peculiar. By its provisions the accused is allowed to make a statement to the court or jury, and may be cross-examined on any such statement. It has been held, says Judge Cooley, that this statement should not be under oath.

In speaking of this statute. and of the right given to cross-examine the party who has made his statement, Judge Campbell says, — “ And while his constitutional right of declining to answer questions cannot be removed, yet a refusal to answer any fair question, not going outside of what he has offered to explain, would have its proper weight with the jury.” People v. Thomas, 9 Mich. 321.

Upon the whole, we are unable to reach any other conclusion than that the respondent’s testimony, so far as it went, — and not less the fact that it went no further — his refusal to submit to a full cross-examination, within proper limits, after waiving his constitutional privilege, and all his conduct and demeanor, were proper matters for comment by counsel and court, as well as for the consideration of the jury. The exceptions are, therefore, Overruled.