In Re Crow

California Court of Appeal Oct 6, 1932 No. Docket No. 1692.Published

Before: Spence

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Holding. The court held that a witness may refuse to answer questions that provide a link in the chain of evidence necessary to convict them of a crime, even if the answer alone is insufficient for conviction. Because the questions sought to place the petitioner at the scene of an alleged illegal operation, they had a tendency to incriminate her under Penal Code section 275.

Issues

Whether a witness may be held in contempt for refusing to answer questions that could provide a link in the chain of evidence leading to their own prosecution for a felony.
Whether the trial court erred in determining as a matter of law that the questions propounded to the petitioner had no tendency to incriminate her.

Disposition. Petitioner discharged.

SPENCE, J.,

Petitioner seeks, her release on

habeas corpus

from confinement for an alleged contempt based upon her failure to answer certain questions as a witness in the trial of G. E. Grosse.

Said G. E. Grosse was charged by indictment under section 274 of the Penal Code with using instruments upon

[618]

petitioner in the month of July, 1932, with the intent thereby to procure a miscarriage. Petitioner and her husband were called as witnesses upon the trial. The district attorney, after certain preliminary questions, asked petitioner; “Now coming down to the month of July, 1932, did you have occasion during that month to visit the office of Dr. Crosse?’’ She answered: “I refuse to testify on the ground that I may incriminate myself.” A discussion followed between court and counsel in which the court recognized that the witness had a “constitutional right”, but declared that there was nothing on the face of the question “which shows it would have any tendency to incriminate her”. Counsel for defendant Crosse finally said: “We have no objection to the witness answering as to whether she went to Dr. Crosse’s office,” and the witness, after being directed to answer by the court, replied to the question in the affirmative. She was then asked: 1 ‘ Who was with you on that occasion?” To which she replied: “I still refuse to answer on the ground I might incriminate myself.” The court was of the opinion that “the question at this stage would develop nothing that would tend to incriminate the witness” and instructed her to answer. The question was re-read and the witness again refused to answer it, restating the same ground for her refusal. She was further asked: “What was the date, to the best of your recollection, of your visit to Dr. Crosse’s office?” She stated: “I still' refuse to answer.” The trial court found the witness guilty of contempt and ordered her into custody.

Petitioner urges several grounds for her release, but we need consider only one of them. It is petitioner’s contention that it was her right and privilege to decline to answer the above-mentioned questions under article I, section 13, of the Constitution, and section 2065 of the Code of Civil Procedure. In our opinion this contention must be sustained. Said constitutional provision has been construed in

In Re Crow

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SPENCE, J.,

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