In Re Hoertkorn

SPENCE, J.

This case is a companion case to proceeding No. 1901, involving petitioner Lemon

(ante,

p. 82 [59 Pac.

[94]

(2d) 213]), the opinion in which last-mentioned proceeding has been this day filed. While much of the discussion in that case is applicable here, the facts in the present case are somewhat different.

Petitioner was a police captain in the police department of the city and county of San Francisco. He was subpoenaed as a witness in the investigation before the grand jury referred to in the other proceeding. He was informed of the nature of the investigation and was advised of his rights. He was then sworn, and he testified at some length on his first appearance before the grand jury. He was later recalled, and the attention of the grand jury and the witness was called to the fact that he had been previously sworn and had testified. On the second occasion he was asked three times if he recalled the warning previously given him. To each of said questions he replied, 1 ‘ I decline to answer the question. ’ ’ He was asked, “Do you decline to answer any other questions?” and he replied, “I decline to answer the question.” He was asked several preliminary questions as to whether he recalled giving certain answers to certain questions on his previous appearance. To each of such questions he replied, “I decline to answer the question. ’ ’ He was then asked, ‘1 Do you refuse to answer that question or any other question that I put to you thus far upon the ground of your constitutional privilege?” He replied, “I decline to answer the question, Mr. Gillen.” He was then informed that a witness’ constitutional privilege extended only to declining to answer questions where the answers would “incriminate him, subject him to criminal prosecution, or degrade his character.” He was then asked, ‘ ‘ Having so instructed you as to the constitutional privilege, I ask you, Captain, if you are declining to answer the question on your constitutional grounds?” He replied, “I decline to answer the question, Mr. Gillen.” The next question was, “In other words, you decline to answer what your grounds are?” He replied, “I decline to answer the question.” He was then instructed that his refusal constituted a contempt. He asked permission to read a statement but was informed that if he refused to answer a question regarding the ground of his refusal, he would be excused at that time and contempt proceedings would be started against him.