Opinion
Opinion filed May 4, 1927.
Witnesses — Disclosure Under G.L. 6535, as Amended by Acts 1921, No. 203, § 1 — Acceptance of Disclosure Discretionary With Trial Court — Constitutional Law — Commitment for Failure To Make Satisfactory Disclosure Not Violation of Constitutional Provision as to Self-incrimination — Nature of Proceedings under G.L. 6535, as Amended.
1. Acceptance of disclosure as to place where, and person from whom, intoxicating liquor was obtained, under provisions of G.L. 6535, as amended by Acts 1921, No. 203, § 1, lies within discretion of trial court, and will not be reviewed except for abuse of discretion.
2. Refusal of trial court to accept respondent's disclosure made under provisions of G.L. 6535, as amended by Acts 1921, No. 203, § 1, as to place where, and person from whom, he obtained intoxicating liquor, where disclosure was that such liquor was given him by several men whom he met on street, all of whom were strangers, held not to constitute abuse of discretion.
3. Commitment of respondent to jail for failure to make disclosure of place where, and person from whom, he obtained intoxicating liquor, under G.L. 6535, as amended by Acts 1921, No. 203, § 1, held not to result in compelling him to deny his statements and admit commission of perjury, thus giving evidence against himself contrary to Ch. 1, Art. 10 of Constitution of Vermont.
4. Respondent called upon to make disclosure of place where, and person from whom, he obtained intoxicating liquor, under provisions of G.L. 6535, as amended by Acts 1921, No. 203, § 1, is in position of witness called by State, and is subject to rule permitting impeachment of such a witness; and it is no invasion of constitutional guaranty against self-incrimination to compel him to answer questions relative to truthfulness of his previous testimony.
5. Proceeding under G.L. 6535, as amended by Acts 1921, No. 203, § 1, to compel respondent to disclose place where, and person from whom, he obtained intoxicating liquor, is not proceeding for contempt, but purely statutory.
PETITION FOR WRIT OF HABEAS CORPUS brought before Justice of Supreme Court and by him adjourned to Supreme Court for Washington County, under provisions of G.L. 2221. The opinion states the case. Petition dismissed and petitioner remanded to former custody.
John A. Gordon and John W. Gordon for petitioner.
Deane C. Davis, State's attorney, for the State.
Present: WATSON, C.J., POWERS, SLACK, FISH, and MOULTON, JJ.
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 re Powers, 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 of his liberty and he is remanded to his former custody, and his petition is dismissed.