Faucett v. State , 10 Okla. Crim. 111 ( 1913 )

The only contention presented in behalf of appellant in the brief of counsel is that, when an inquest was being held to ascertain the cause of the death of the deceased, appellant was summoned as a witness by the justice of the peace, who was acting as coroner, and placed upon the stand and compelled to give evidence of the entire transaction which resulted in the death of the deceased; that all of this evidence was given over the objection of his counsel, and that thereby appellant had by said justice of the peace been granted immunity under the Constitution of the state.

The position of counsel for appellant is based upon the assumption that a justice of the peace has the power to grant immunity in murder cases. It is expressly provided by our statute that the court, either upon its own motion or upon the application of the county attorney, and in furtherance of justice, may order the dismissal of any indictment or information against a defendant, and that in such cases the reasons of the dismissal must be set forth in the order, and must be entered upon the minutes. See section 6099, Rev. Laws 1910. Section 6100 takes from the county attorney the common-law right of entering a nolle prosequi in any case, without the consent of the court. Section 6101 provides that, although the judge may order a case to be dismissed, such dismissal is not a bar to any other prosecution for the same offense.

Discussing this question in the case of Andy Scribner v.State, 9 Okla. Cr. 465, 132 P. 933, this court said:

"If a county attorney cannot discontinue or abandon a prosecution for a public offense, except with the consent and approval of the court, and if a case can be renewed, and if such dismissal, though made with the approval of the court, does not bar another prosecution for the same offense, with what show of reason can it be said that a county attorney or any inferior tribunal can grant a defendant immunity, and absolutely bar a court of competent jurisdiction from prosecuting and punishing a criminal? Such a construction would enable a county attorney, or a justice of the peace, or a county judge, to absolutely bind the district court and conclude its action, which would often result in the defeat of justice. One illustration will demonstrate this: Suppose A. and B. engage in a mutual combat, in which each tries to kill the other. Suppose they are both arrested and have an examining trial before a committing magistrate, and such committing magistrate requires A. to testify against B., and then requires B. to testify against A. If such action is legal, then Both A. and B. would secure immunity. This would reduce the law to an absurdity, and defeat the very purpose which was had in view when it was adopted. But it may be said that, if a justice of the peace has the right to hold an examining court, he also has the right to enforce the attendance of witnesses, and compel answers to questions. Within reasonable bounds this is true. But if a justice of the peace permits illegal questions to be asked a witness, and attempts to force answers to them, and commits the witness for contempt for refusing to answer such questions, the remedy of the witness is by habeas corpus. See Ex parte Gudenoge,2 Okla. Cr. 110, 100 P. 39. But if a witness answers illegal questions, and such answers are not voluntary, this would not grant the witness immunity, and such evidence could not be used against him in any other proceeding, because it would not be a voluntary statement freely made.

"While a justice of the peace, if there is no evidence against a party charged with murder, from which it appears that he is probably guilty, may discharge the defendant, certainly no one will contend that a justice of the peace can enter any order which would amount to an acquittal of a defendant charged with murder and prevent his subsequent prosecution. If he cannot do this directly, but if a witness be allowed immunity on account of being compelled to answer questions in a justice court which may incriminate him, and on account of such answers receives immunity, it would be permitting a justice of the peace to do indirectly that which he cannot do directly. This would be an absurdity upon its face. There is no logical escape from the conclusion that under our constitutional provisions and our statute immunity can only be secured by the action of a court having jurisdiction to finally try the matters with reference to which the immunity is claimed. In a trial before a justice of the peace he may compel a witness to answer questions which would incriminate such witness as to any matter within the jurisdiction of the justice of the peace for final trial; but beyond this he cannot go. If he could, he would have power to bind the county court, the superior court, the district court, and this court. In states in which a county attorney may enter a nolle prosequi without the consent of the court, he may grant immunity by contract without the approval of the court; but he cannot do so in this state. Under our system immunity is a judicial question which must be passed upon and decided alone by the court having jurisdiction to finally try the matters involved in the immunity claimed. If a witness has secured immunity by answering incriminating questions upon the order of a court of competent jurisdiction, or if a witness has an agreement with the prosecuting attorney approved by such a court, then this court will see that he is protected in his rights; but this court is not going to permit the doctrine of immunity to be used as an avenue of escape to guilty men, or as a cloak of protection for criminals."

We think that the decision in Scribner's case is decisive of the question now before us. Even if a justice of the peace in a regular trial has the power to compel a witness to answer incriminating questions as to matters beyond the jurisdiction of the court, appellant could not have received immunity in this case, because under section 1671, Rev. Laws 1910, it is expressly provided, "In no case shall the coroner hold any inquest, unless the cause of the death is unknown." In the case at bar the cause of the death of John Cox was well known. There was, therefore, not only no necessity for holding said inquest, but it was expressly prohibited by statute, and the justice of the peace had no power or jurisdiction to hold such inquest, and all of his actions thereon are absolutely without jurisdiction and void. We are therefore of the opinion that the trial judge did not err in holding that appellant had not been granted immunity by an officer authorized to make such an order. This is a question for the court alone, and should never be submitted to a jury. See Scribner's case, supra.

There was a square conflict in the evidence in this case. The testimony for the state would have supported a conviction for murder. The testimony for appellant makes a plain case of justification, upon the ground that appellant was defending his place of business. The credibility of the witnesses was a question for the jury to determine. In finding appellant guilty of manslaughter in the first degree, the jury were probably influenced by the fact that the deceased was proven to be a man of bad character for peace, and the further fact that the instructions of the trial court were very liberal in behalf of appellant.

We find no material error in the record. The judgment of the lower court is in all things affirmed.

ARMSTRONG, P.J., and DOYLE, J., concur.