In Re MacKenzie ( 1927 )

This is a petition for a writ or habeas corpus, originally brought before a Justice of this Court, and by him adjourned into the Supreme Court pursuant to G.L. 2221. The petitioner was arrested on February 26, 1927, and charged with the offense of intoxication. He pleaded guilty before the city court of the city of Barre and was thereupon required by the court to disclose the place where, and the person from whom, he obtained the liquor causing his intoxication, under the provisions of G.L. 6535, as amended by section 1, No. 203, Acts of 1921. His disclosure was unsatisfactory to the court and he was thereupon committed to the Washington County jail until he should make such disclosure or be discharged by the court, or otherwise by order of law.

The petitioner alleges that he made a "full and fair" disclosure, and that he is therefore unlawfully imprisoned, and is entitled to his enlargement.

The record of the disclosure is made a part of the petition, and it therein appears that the petitioner testified that the intoxicating liquor was given to him by several men, all strangers to him, whom he met late in the evening at Depot Square in Barre.

The acceptance of a disclosure lies within the discretion of the trial court, and is not to be reviewed in the absence of an abuse thereof. We cannot exercise its discretion for it, or say whether it ought to have believed the time-worn story narrated by the petitioner. The question of the truth of this disclosure is not before us. That was a matter for the trial court to decide. In re Carpenter, 71 Vt. 91, 93, 41 A. 1042; In rePowers, 25 Vt. 261, 271. On the record submitted, an abuse of discretion does not appear.

In the petitioner's brief, although not in the petition itself, it is claimed that, since the petitioner says that he has made a truthful disclosure, the result of the commitment is to compel him to deny his statements, and to admit that he has committed perjury, thus giving evidence against himself, contrary to chapter 1, article 10 of the Constitution of this State.

The privilege against self-incrimination is a personal one, Hale v. Henkel, 201 U.S. 43, 69, 50 L. ed. 652, 668, 26 Sup. Ct. 370. It is said in State v. Duncan, 78 Vt. 364, 376, 63 A. 225, 227, 4 L.R.A. (N.S.) 1144, 112 A.S.R. 922, 6 Ann. Cas. 602:

"But the privilege is an option of refusal, not a prohibition of inquiry. Hence, when an ordinary witness is on the stand, and a self-criminating act relevant to the issue is desired to be shown by him, the question may be asked, and then it is for the witness to say whether he will answer it or claim its privilege, for it cannot be known beforehand what he will do."

It would be a sufficient answer to his contention, even if we were to admit the soundness of the petitioner's argument, that the proper place in which to claim the privilege is in the trial court, when the question is propounded, not here. But the point is not well taken. It would be strange indeed, if a witness, pressed on cross-examination to admit that his previous testimony was false, or questioned concerning the existence of facts which would tend to make his testimony less credible, could be heard to say that an answer would tend to convict him of the crime of perjury, and that he was privileged not to answer. Yet this is the logical and necessary result of the doctrine advanced by the petitioner, and we are unable to give our assent to it.

No reason appears why the examination on disclosure should not be subject to the ordinary rules of cross-examination. The person making the disclosure is in the position of a witness called by the State, and is subject to the rule permitting the impeachment of such a witness. State v. Slack, 69 Vt. 486, 488, 490,38 A. 311; State v. Harrison, 66 Vt. 523, 527, 29 A. 807, 44 A.S.R. 864; State v. Magoon, 50 Vt. 333, 340. It is no invasion of the constitutional guaranty against self-incrimination to compel the witness to answer questions relating to the truthfulness of his previous testimony.

This is a proceeding expressly authorized by the statute, and not, as the petitioner claims, a proceeding for contempt. Consequently, the authorities cited by him upon this point are not applicable here.

It is adjudged that the petitioner is not illegally deprived ofhis liberty and he is remanded to his former custody, and hispetition is dismissed.