State v. Duffy

Wright, J.

No good ground has been suggested why the petitioner was not entitled to the time asked to make the proposed written explanation. The statute expressly declares that in such cases he may, “ at' his option,” make such explanation, which must be filed and preserved. § 2693. This is to'be done, of course, if the party charged desires it, before he is punished. There is no authority for refusing to receive the explanation, where it is proposed to make it, and the party should have a reasonable time to prepare the same. In this case it seems a short'time was asked; that the request was refused, and the commitment at once made. This was certainly erroneous.

But the petitioner did afterwards file a statement, and if that, in connection with all the circumstances, fails to show that he properly refused to answer, he should not be discharged. And this is the substantial question presented for our determination.

The true rule upon this subject will be found discussed by Chief Justice Marshall ( 1 Burr’s Trial, 244 ), and in The People v. Mather, 4 Wend., 230 ; Bellinger v. The Peo ple., 8 Id., 595, and the cases there cited. See also 1 Greenl. Ev., § 451; Southard v. Pexford, 6 Cow., 254, 255 ; and Printz v. Gheeny & Street, 11 Iowa, 469 . It is not left alone for the witness to determine whether the answer would tend to criminate him. He is not required to explain how he would be criminated, for this would, or might, annihilate the protection secured by this rule. But it is for the Court to determine “whether the answer can criminate him, directly or indirectly, by furnishing direct evidence of his guilt, or by establishing one of many facts, which together may constitute a chain of .testimony sufficient to warrant his conviction, but one part of which itself could not produce such result.”

We are satisfied that the petitioner in this .case is not within the rule. If he could be excused, then we can *428 hardly conceive of a case where the Court could exercise any discretion, though the protection might be claimed “ as a mere subterfuge to suppress the truth, and thereby aid the escape of the guilty.” Suppose he answers that he did see the bull at the place designated, or that Divine did kill him, or negatives both propositions, what fact is thereby established which tends to make one of the links in the complete and essential chain? We coilfess that we cannot, except by indulging in imaginary cases, improbable, if not quite impossible, make a case where his answers, whatever their character, would tend to criminate him. Cheeny v. Street, supra, though somewhat like this, is distinguishable in its facts and circumstances. The defendants were, in that case, on their trial for trespass, for tearing down a house. It partook of the character of a mob; a number of persons were implicated; and, under such circumstances, the Court, having all the facts before it, might well see that the witness could not “state what he knew about any persons tearing down the house, or all that the defendants did ” about it, without disclosing facts which would tend to inculpate himself. That case carries the rule as far as the books will justify. We are not disposed to still further extend it to cases like the one before us. The order of the Court below is affirmed, but without costs.

Affirmed.