before the tribunal which exacts his testimony.83 But other courts hold that this is not necessary.84 § 215. As dependent upon proceedings in which testimony is given. The immunity extends to witnesses testifying in civil suits,85 or before a grand jury,86 or giving evidence before a committee of the 83 United States v. Skinner, 218 Fed. 870; United States v. Heike, 175 Fed. 852, judgment aff'd on other grounds 192 Fed. 83; 227 U. S. 131, 57 L. Ed. 450, 33 Sup. Ct. 226, Ann. Cas. 1914 C 128; Tague v. State, 15 Okla. Cr. 55, 174 Pac. 1106; Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915 B 381. A person called as a witness before the grand jury to establish a complaint made by him against a third person for robbery, who, without objection and without claiming his privilege, testifies that at the time of the alleged robbery he himself was running a gambling house, is not exempt from prosecution for the latter of fense, although the statute grants immunity to persons testifying concerning the offense of gaming. People v. Reggel, 8 Utah 21, 28 Pac. 955. "Testimony given without the assertion of the constitutional privilege, or declined to be given upon any other ground than that of its incriminating tendency, is not compulsory testimony under the fifth amendment, and has always been available without remedial legislation; and so, there being no necessity for conferring immunity on the giver of it, Congress will not be construed to have done so, where its language may be reasonably otherwise construed." The government is also entitled to know whether the witness testifies voluntarily or under compulsion, in order that, in case he claims his privilege, it may intelligently elect whether it will receive his testimony and thereby grant him immunity or will reject it and thereby deny him immunity. United States v. Skinner, 218 Fed. 870. Since the immunity is no broader than the privilege which it invades, and since where there is no privilege of silence there is no necessity for granting immunity, a waiver of the privilege is also a waiver of the immunity. Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915 B 381. 84 Doyle v. Willcockson, 184 Iowa 757, 169 N. W. 241; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep. 851, rev'g 45 Hun 460; State v. Murphy, 128 Wis. 201, 107 N. W. 470; Queen v. Hammond, 26. Ont. Rep. 211. And see In re Grand Jury, 135 N. Y. Supp. 103. 85 United States v. Standard Sanitary Mfg. Co., 187 Fed. 232. 86 United States. Hale v. Henkel, 201 U. S. 43, 50 L. Ed. 652, 26 Sup. Ct. 370. Alabama. Sandwich v. State, 137 Ala. 85, 34 So. 620. Iowa. Doyle v. Willcockson, 184 Iowa 757, 169 N. W. 241. Kentucky. Bentler v. Com., 143 Ky. 503, 136 S. W. 896. Oklahoma. Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915 B 381. Tennessee. State v. Hatfield, 3 Head 231; Owens v. State, 2 Head 455. Texas. Elliott v. State (Tex. App.), 19 S. W. 249; Griffin v. State, 43 Tex. Cr. 428, 66 S. W. 782. legislature, but not to defendants called by a co-defendant in a civil suit to testify in the latter's behalf.88 It cannot be claimed because of testimony given in a proceeding which is void for want of jurisdiction,89 and in Oklahoma it is held that it can only be secured by the action of a court having jurisdiction to finally try the matters. with reference to which the jurisdiction is claimed.90 § 216. -- Effect on pending and subsequent prosecutions. Statutes of this character prevent further prosecutions under an indictment pending when the testimony is given,91 and entitle the witness to his discharge if he testifies after he has been convicted but before he has been sentenced, where the statute grants immunity from punishment.92 But even a statute granting immunity from punishment does not operate as an immediate pardon of one who has already been sentenced before he testifies, nor suspend or prevent further execution of the sentence.9 93 Provisions granting immunity from prosecution do not deprive a court before which such a prosecution is instituted of jurisdiction,94 Virginia. Flanary v. Com., 113 Va. 775, 75 S. E. 289. 87 People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep. 851, rev'g 45 Hun 460. 88 United States v. Standard Sanitary Mfg. Co., 187 Fed. 232. 89 Faucett v. State, 10 Okla. Cr. 111, 139 Pac. 839, L. R. A. 1918 A 372. 90 Hence in that state a witness is not entitled to immunity because he gives self-incriminating evidence before a justice of the peace as to a matter not within the jurisdiction of the justice for final trial, although such evidence cannot afterwards be used against him unless he gives it voluntarily. If the justice attempts to enforce answers to illegal questions by contempt proceedings, the witness has a remedy by habeas corpus. Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915 B 381. So a witness is not entitled to im munity from prosecution for homi- 93 The word "punishment" will be construed as meaning the act of inflicting a penalty for an offense rather than the enduring of the penalty. People v. Lane, 132 N. Y. App. Div. 406, 116 N. Y. Supp. 990, aff'd 196 N. Y. 520, 89 N. E. 1108. 94 This is true under a statute providing that "no prosecution can afterwards be had against such witness. Prohibition will not lie to prevent the prosecution of a person entitled to immunity. Rebstock v. Superior Court of City and County of nor require that such a prosecution must end when a plea of immunity thereunder, if well taken, is interposed,95 but merely provide the witness with a shield against successful prosecution, which is available to him as a defense,96 and which may be made the basis. for the reversal of a final judgment against him in case such defense is improperly overruled.97 The fact that the witness may not be able San Francisco, 146 Cal. 308, 80 Pac. 65. $. 95 Heike v. United States, 217 U. S. 423, 54 L. Ed. 821, 30 Sup. Ct. 539. 96 United States. Heike v. United States, 217 U. S. 423, 54 L. Ed. 821, 30 Sup. Ct. 539. Alabama. Sandwich v. State, 137 Ala. 85, 34 So. 620. Indiana. State v. Pence, 173 Ind. 99, 89 N. E. 488, 25 L. R. A. (N. S.) 818, 140 Am. St. Rep. 240, 21 Ann. Cas. 1180. Mississippi. Wall v. State, 105 Miss. 543, 62 So. 417. New Hampshire. State v. Nowell, 58 N. H. 314. "His claim, if well founded, is a full and complete defense to the charge against him, but it is * nothing more than a defense, and, like all other defenses, including that of a denial of the truth of the allegations of the indictment, must be presented for determination as to its sufficiency to the tribunal having jurisdiction of the proceeding, which, in the exercise of its jurisdiction, will determine as to the sufficiency of the defense." Rebstock V. Superior Court of City and County of San Francisco, 146 Cal. 308, 80 Pac. 65. In Kentucky the defendant is entitled to have an indictment found in violation of the statute dismissed or quashed, or, if this is not done, the court should grant a motion for a peremptory instruction to acquit him. Bentler v. Com., 143 Ky. 503, 136 S. W. 896. In Oklahoma it is held that the question of whether the defendant is entitled to immunity under the constitutional provision on the subject must be raised by a plea in bar in support of a motion to discharge the defendant, which plea and motion should be decided by the court without the intervention of a jury before the defendant is placed on trial upon the merits. Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915 B 381. The question of immunity is one for the court alone, and should never be submitted to the jury. Faucett v. State, 10 Okla. Cr. 111, 134 Pac. 839, L. R. A. 1918 A 372. 97 Bentler v. Com., 143 Ky. 503, 136 S. W. 896. Any error of the court in respect to the defense of immunity may be corrected on appeal. Rebstock v. Superior Court of City and County of San Francisco, 146 Cal. 308, 80 Pac. 65. A judgment of a federal court overruling a plea of immunity with leave to the defendant to plead over is not a final judgment, and a writ of error from the supreme court will not lie to review it. The denial of the right to immunity can only be taken up for review after final judgment in the Heike v. United States, 217 U. S. 423, 54 L. Ed. 821, 30 Sup. Ct. 539. case. In Oklahoma, if the court denies the plea of immunity the denial may be reviewed on appeal from a final judgment of conviction, while if he sustains the plea and discharges the to produce evidence to sustain his plea of immunity if subsequently indicted cannot be considered in determining the effect of the immunity statute,98 nor can it be said that he is not sufficiently protected because a prosecution may be instituted against him, and he may thereby be put to the annoyance and expense of pleading his immunity by way of confession and avoidance.99 XII. INCONSISTENT DEFENSES § 217. In general. Generally the defendant in a criminal case may set up inconsistent defenses,1 and the fact that he does so raises no presumption against him. It has been held, however, that a person charged with being an accessory before the fact to a crime cannot occupy the inconsistent position of denying the procurement and at the same time contending that he repented and countermanded it.3 defendant, the state may appeal directly, as in cases where a demurrer to the indictment is sustained. Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915 B 381. 98 Hale v. Henkel, 201 U. S. 43, 50 L. Ed. 652, 26 Sup. Ct. 370; Flanary v. Com., 113 Va. 775, 75 S. C. 289. 99 Heike v. United States, 217 U. S. 423, 54 L. Ed. 821, 30 Sup. Ct. 539; Brown v. Walker, 161 U. S. 591, 40 L. Ed. 819, 16 Sup. Ct. 644, aff'g 70 Fed. 46; Rebstock v. Superior Court of City and County of San Francisco, 146 Cal. 308, 80 Pac. 65; State v. Nowell, 58 N. H. 314. CHAPTER 7 PARTIES IN CRIME I. CLASSIFICATION OF PARTIES § 218. In general. § 219. Offenses in which these distinctions are recognized-In general. Statutory offenses. § 220. § 221. § 222. § 223. Statutes abolishing common-law distinctions. § 224. Who may be aiders and abettors or accessaries. II. PRINCIPALS § 225. In general. § 226. Principals in the first degree-In general. § 227. Commission of offense by innocent agent. § 228. Principals in the second degree, aiders and abettors-In general. Presence when offense is committed-In general. Constructive presence. - Necessity for and sufficiency of participation-In general. § 229. § 230. § 231. § 232. § 233. § 234. § 235. § 236. Meaning of aid and abet. Presence, acquiescence. Necessity for preconcert. Intent-In general. |