STATE v. SACKS. (No. 25287.) pher for the district court, whom he had had come to his office to take the testimony in an inquisition. There were also present the (Supreme Court of Kansas. May 10, 1924.) federal prohibition enforcement officers. The (Syllabus by the Court.) 1. Criminal law 42-Witness before county attorney in inquisition could claim immunity though not subpœnaed. One who testifies before a county attorney in an inquisition authorized by Rev. St. 62-301, will not be denied the right to claim immunity because of the fact that he had not been subpœnaed. 2. Criminal law 42-Witness before county attorney in inquisition entitled to immunity though testimony not sufficient for successful prosecution. It is not necessary to immunity from prosecution that one who testifies in an inquisition authorized by Rev. St. 62-301, give testimony upon which a prosecution can be successfully predicated. 3. Criminal law 42-Test as to whether witness before county attorney in inquisition is Immune from prosecution stated. Where one testifies in an inquisition authorized by Rev. St. 62-301, and is afterwards prosecuted and claims immunity because of the subject-matter of his testimony, the test is whether or not he is being prosecuted on account of any transaction or matter or thing concerning which he was compelled to testify. Appeal from District Court, Atchison County; William A. Jackson, Judge. Ernest Sacks was prosecuted in a criminal case, and from a judgment sustaining a demurrer to the evidence offered in support of a plea in bar and abatement and overruling the plea, he appeals. Reversed, with directions to sustain plea. Ralph U. Pfouts, of Atchison, and Le Roy T. Hand, of Leavenworth, for appellant. Charles B. Griffith, Atty. Gen., and Maurice P. O'Keefe, Co. Atty., of Atchison, for the State. county attorney administered to Sacks the oath of a witness, and asked him about selling whisky to one B. Brown about January 1. At first Sacks declined to answer on the ground that it might incriminate him, but he was told to go ahead and answer, and finally said that he did not sell any whisky to B., Brown; that he did not sell anything to Brown at any time, and that he was not a whisky peddler. He was then asked about the still which was found on his place by the prohibition enforcement officers the day before. He said he did not own it, and had nothing to do with it; that he had first seen it about two weeks before in the road in a wagon where some man had it, and he denied that he put it in the building where it was, denied having bought a new lock for the door of the building, and denied having a key to it. In answer to other questions he said that he had bought whisky from people and had whisky given to him, and that he had given whisky to other people, but denied having sold any whisky. He was not specifically asked whether or not he manufactured whisky. On the next day, January 5, the county attorney filed an information against him in the district court charging him in five counts with violation of the prohibitory liquor law-the first count charging him with the manufacture of infourth counts charging sales on or about Detoxicating liquor, the second, third, and cember 1, 1922, December 22, 1922, and January 1, 1923, and the fifth count charging possession of intoxicating liquor. Sacks was arrested on this charge, and filed a plea in bar and abatement, setting out the inquisition before the county attorney, and averred that by reason of the statute (Gen. Stat. 1915, §§ 5503, 5504; consult R. S. 62-301) authorizing the holding of such inquisitions, and which provides, "But no person shall be prosecuted or punished on account of any transaction or matter or thing concerning which he shall be compelled to testify," he could not be prosecuted for the matters concerning which he had been compelled to testify. The state filed a general denial to this plea, and the issues thus framed came on for HARVEY, J. This is an appeal from a judgment sustaining a demurrer to the evidence offered in support of plea in bar and abatement in a criminal case and overruling the plea. The circumstances giving rise to the judgment complained of are as follows: Federal prohibition enforcement officers, working in connection with the county at-hearing before the court, a jury being torney of Atchison county, went to the home waived. Appellant offered evidence in subof Sacks, the appellant, who lives in the stance as above stated. The testimony incountry, on January 4, 1923, and found a cluded by stipulation the transcript made still. Sacks was not at home, but his wife by the court reporter of the testimony taken was told by the officers to tell Mr. Sacks to at the inquisition. The court reporter also come to the county attorney's office the next testified that the transcript contained only a day at 1 o'clock. When Sacks returned home part of the questions asked and answers that evening his wife communicated this re-made by Sacks; that many questions were quest to him, and on the next day he went to asked that were not taken by him and not the county attorney's office at Atchison. shown in the transcript; that early in the There the county attorney had the stenogra-examination the county attorney told Sacks For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 P.) "It is not necessary, in order that there may be immunity from prosecution, that the witness should have given evidence adverse to himself. that he was obliged to answer the questions,, W. 470, the court, construing a similar statand this was necessary in order to get him ute, held: to answer. The state demurred to the evidence offered in support of the plea in bar. The court sustained the demurrer, and overruled the plea. This appeal is from that judgment. Appellant contends that a comparison of the charges in the information with the testimony given by Sacks at the inquisition makes it clear that he is now being prosecuted on account of matters and things concerning which he was compelled to testify within the meaning of the statute above mentioned. [1] The state contends that appellant cannot take any advantage of this statute, for the reason that no subpoena was issued for him. No subpoena was necessary. 4 Wigmore on Evidence, 960; United States v. Armour & Co. (D. C.) 142 Fed. 808; Atkinson v. State, 190 Ind. 1, 128 N. E. 433. The purpose of issuing a subpoena is to get a witness into court. If he appears by request of attorney for either side or some officer or voluntarily and is sworn, it is no longer material whether a subpoena has been issued for him. His testimony is subject to the same objections and should be given the same weight and he is entitled to immunity to the same extent as though he had been served with a subpoena. The record in this case makes it clear that appellant's testimony was not voluntarily given. At first he declined to answer for the reason that he might incriminate himself, but he was told by the county attorney to answer the questions, and finally told that he was obliged to answer them, after which he did answer them. The state further contends that appellant was not asked specifically about manufacturing intoxicating liquor. He was asked concerning a still found on his premises, but it is contended that at that time the possession of a still was not a criminal offense, though it was later made so by chapter 135 of the Laws of 1923. R. S. 21-2112. would seem that the only purpose in asking him about having a still would be to bring out some evidence pertaining to the unlawful manufacture of intoxicating liquor, which offense was charged in the first count of the information. It [2] The state contends that, because Sacks denied having sold intoxicating liquor, and denied for the most part facts which would disclose that he had committed an offense under the liquor law, the statute does not apply to him. In other words, the state argues that, unless the witness testifying at an inquisition before the county attorney gives evidence which clearly shows the commission of an offense so that the state could base a prosecution upon his testimony with safety, there is no immunity under the statute. [3] As to the sufficiency of the disclosure to entitle one to immunity the rule is thus stated in 4 Wigmore on Evidence, § 2282, p. 956: "The question will also arise whether the witness has, in the subject of his testimony, made a disclosure such as entitles him to the immunity. This may depend somewhat upon the phrasing of the particular statute. But, so far ticular statutory wordings, it should be necesas the general principle is not affected by parsary and sufficient (a) that the witness states something, not merely denies knowledge of any facts; (b) that his statement is of facts asked for by the opponent, not of facts volunteered or irrelevantly interjected; and (c) that the facts concern a matter about which the answer might by reasonable possibility have criminated him; for, while on the one hand it is immaterial whether the answer actually given is an incriminating one, yet, on the other hand, there is no privilege which he can exchange for the immunity unless the matter is one on which his answer might conceivably criminate him." Under the facts stated in the opinion, it was not error for the court to refuse defendants permission, during the trial, to amend their anIn State v. Murphy, 128 Wis. 201, 107 N.swer, setting up an alleged settlement or com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes promise of the claim in controversy. Nor was loaded into the car and taken by Carlos it error to refuse an offer by defendants to Hutchinson to Hewins; that the deceased prove a settlement or compromise by cross-mounted a large horse, on which he rode to examination of the plaintiff. 3. Highways184 (3)-Negligence of automobile driver as to speed and taking measures to avoid accident held for jury. The evidence examined, and held to have been sufficient to require submission of the case to the jury. 4. Highways 184 (3) Whether negligent failure of automobile driver to avoid accident after discovery of peril was proximate cause held for jury. In an action for damages for wrongfully causing the death of one by running over or striking him with an automobile in a public road, although the evidence may show that the negligence of the deceased, in lying in the road in the first instance, contributed toward his injury, yet, if there is evidence tending to show that the driver of the automobile which caused the death saw deceased in the position of danger, from which he could not extricate himself, or, by the exercise of reasonable diligence, should have seen him in time to stop or to avoid running over or striking him, the proximate cause of the death is one of fact for the jury. 5. Assignments of error held not well founded. Various assignments of error considered, and held not to be well founded. Appeal from District Court, Chautauqua County; Allison T. Ayres, Judge. Action by Ida Morlan against Susie Hutchinson Hyatt, guardian of Carlos Hutchinson, a minor, and another. Judgment for plaintiff, and defendants appeal. Affirmed. within a short distance of the city limits of Hewins, when he either fell or slid off and lay in the road; that he was seen on the horse by a witness, Grace Chappel, a brief time before he got off, and was next seen lying in the road; that Chappel went to him from his house near by, and attempted to help him up; that he had some conversation with him, in which the deceased said, among other things, "Leave me alone a little while, I will be all right;" that Chappel returned to his house to telephone for help, and while so doing the defendant Carlos Hutchinson returned in his automobile at a high rate of speed, running over or striking the body of the deceased as he lay in the road, inflicting such injuries that he never regained consciousness, and from which he died the next day; that he was a healthy, strong man, 36 years of age, 5 feet 9 inches in height, weighing 196 pounds two weeks before his death; that he left surviving him his widow, the plaintiff, together with six children, ages ranging from 3 to 14 years; that he provided for his family by doing farm or public work, making from $40 to $70 per month; that his life expectancy was 31.7 years. The defendant denied running over or striking the deceased with his car, but the jury resolved the disputed question in favor of the plaintiff. In addition to a general verdict of $10,000 against defendants, the jury answered special questions as follows: "(1) Do you find that the deceased, Jess Mor J. E. Brooks and R. O. Robbins, both of lan, was intoxicated at the time of the accident? A. Yes. Sedan, for appellants. W. H. Sproul and C. W. Spencer, both of lan, was lying in the center of the road, or near "(2) Do you find that the deceased, Jess MorSedan, for appellee. HOPKINS, J. The action was one to recover damages for the wrongful death of plaintiff's husband. Plaintiff recovered, and defendants appeal. The testimony shows, substantially, that plaintiff, her husband, and family resided on a farm about three miles west of Hewins, in Chautauqua county; that on the morning of December 11, 1920, the husband started from home to Hewins on a horse, taking some meat for his mother, who was at Roy Savage's place, on the road to Hewins; that when he reached Savage's place he found Grant Hutchinson; from liquor there obtained he and Grant Hutchinson became intoxicated; that he rode his horse into Hewins about a mile to get Carlos Hutchinson, son of Grant Hutchinson, to come out for his father. Having found Carlos, the two returned in a Hudson speedster touring car, which weighed 2,800 or 3,000 pounds. Grant Hutchinson, in an intoxicated condition, was the center of the road, at the time of the accident? A. Yes. "(3) At what rate of speed was the car driven by the defendant traveling just prior to the accident? A. 40 miles. "(4) Did Carlos Hutchinson do all that he could to prevent the accident after he discovered the body in the road? A. No. "(5) If you answer question No. 4 in the negative, then state what he could have done that he did not do to prevent the accident. A. Changed course; applied brakes. "(6) Of what act or acts of negligence do you find the defendant guilty of? A. Excessive speed; not carefully observing the road ahead. "(7) Was the act of the deceased, Morlan, of lying in the road, the act of an ordinarily prudent person? A. No. "(8) Would the accident have happened, had not the deceased, Morlan, been lying in the road? A. No. "(9) Did the deceased, Morlan, fall from a horse shortly before the accident? A. No. "(10) Was the condition of the deceased, Morlan, such at the time he mounted the horse that it was unsafe for him to ride said horse? A. Yes. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 P.) "(11) How far beyond the body did the car go before stopping? A. Twelve feet." [1] It is contended by the defendants that the court erred in overruling a motion to require plaintiff to make her petition more definite and certain. A previous motion to strike out certain matters had been sustain ed. The petition, among other things, alleged, in general terms, that the deceased was 37 years old at the time of his death; that prior thereto he was a strong, ablebodied, healthy, industrious young man, who supported his family, which consisted of his wife and six children between the ages of 2 and 13 years; that he was their sole sup port; that he was continuing to work and labor for their benefit, and would have continued so to do, had he not been killed as alleged. While the court would have made no mistake in requiring plaintiff to set out, with more detail, what the deceased would have earned, and what his expectancy was, it cannot be said that the court abused its discretion, or that the defendants were in any way prejudiced by the court's refusal so to do. [2] Complaint is made of refusal of the court to permit the defendants to amend their answer at the time of the trial and introduce testimony to show that the defendants had paid certain bills for the plaintiff and provided her a home. The record shows that after the examination of several witnesses, when plaintiff was on the stand, the defendants endeavored to show, as a part of her cross-examination, that payments were made to her as consideration for any claim she had against them. It was rejected as irrelevant under the issues, and as not prop er cross-examination. The court held that any amendment to the pleading, putting a compromise in issue, should have been considered and disposed of before the trial. The record discloses no offer to prove a compromise or settlement as a part of the defense. Under all the circumstances it was not error for the court to refuse the offer as made. [3] It is contended by defendants that the evidence of negligence of the defendant was so meager that a demurrer to the evidence should have been sustained. There was ample testimony to warrant submission of the case to the jury, and to support the findings that the defendant, at the time of the accident, was driving the car at 40 miles an hour, and that he did not do all that he could have done to prevent the accident. [4] The plaintiff submitted the case upon the doctrine of the last clear chance. It was contended that, although the deceased was guilty of negligence in voluntarily becoming intoxicated, and in the position in which he lay in the road, nevertheless, the defendant was liable because he was in position to observe his helpless condition, and was bound to do what a reasonable person would do under the circumstances to avoid the injury, and, failing to do so, was guilty of negligence which was the proximate cause of the injury. It was not a case of concurrent negligence, as contended by the defendants. The deceased, in the first instance, although intoxicated, realized the condition of the elder Hutchinson and rode a mile into town to procure assistance for him. His unsuccessful attempt afterwards to ride the large horse into town, resulting in his being left prostrate in the road, contributed to his injury. In all human probability he would not have been injured had he not become intoxicated, and likely would not have been injured had he not tried to ride the horse. His negligent acts, however, so far as he was able to exercise control over the situation, had passed at the time of the injury, for he was not in a condition to save himself from being run over. On the other hand, the defendant Carlos Hutchinson knew the condition of the deceased, else he would not have returned to the scene for the purpose of taking him to town. He returned alone. The deceased was lying across the road in such a position that Hutchinson, in approaching him, could see him for a distance of 200 feet. In the trial he denied that he ran over or struck the body of the deceased with his car. The facts and circumstances do not support his denial. This testimony by vari ous witnesses: "Q. Driving very fast, was he? What is your judgment? A. About 40 miles to the hour. "Q. And around the bend in the road how fast was he going? A. He came just about the same all the way from the time I saw him. "Q. Untu he came to the body of Morlan? A. Yes, sir; never checked his car. "Q. Did you see him when he reached Morlan? A. Yes, sir. "Q. What took place? A. I couldn't hardly tell you. It was all done so quick. "Q. Did he drive on the body or over the body? A. I couldn't tell whether he drove over the body or not. It was done in too big a hurry for me to tell. say? A. I asked I said, 'You ran "Q. What did you hear him him if he ran over the body. over the man, didn't you?' kind of rough language. "Q. What did he say? A. Well he used some "Q. Please use the same, if you can. A. He said, 'No, I didn't; but I wish I had run over the d-d s of a b-.' "Q. And then what did Hutchinson do? A. Mr. Chappel came, and I think they went to the body; left the car, and I went in the house. "Q. Describe to the jury the position of the body in the road after the automobile ran over him. A. I never saw the body after the car hit the body from my view after it passed. I never saw the body any more. "Q. Did you see the car when it reached the body? A. Yes, sir. "Q. Did you see whether or not the car ran over the body? A. No; I couldn't say it did, but the body moved during the time the car passed. * "Q. Did you hear Hutchinson make any statement in regard to the occurrence at that time? A. No; he came up the road, and I met him and he said he had run over Jess Morlan, the 8- of a b, and killed him,, and we got in my car and started back up the road, I and two girls, and him, and he said he didn't run over him; he was just kidding. was about to collide, he turned eastward parallel with the car, and after reaching some rough pavement was thrown from his bicycle in front of the moving car, carried some distance, and killed. It was claimed that contributory negligence barred recovery. It was also argued that, although the negligence of the deceased contributed to the collision, yet if the motorman saw him in a position of danger, or by the exercise of reasonable diligence should have seen him, in time to stop the car before killing him, the defendant was liable. This theory was "Q. He told you at first that he had? A. Yes, adopted and followed after full consideration. sir." Witnesses who did not see the accident, but who afterwards examined the clothing worn by the deceased, testified that there was a strip of mud across the breast and right arm about three inches wide, extending clear across the body. "Q. Did you examine the body of Jess Morlan after his death? A. Yes, sir. "Q. How soon after? A. I don't remember; 2 or 3 days. "Q. State to the jury the condition you found the body in. A. I noticed there was a bruise on one arm-I think, right arm-and his neck and throat was bruised up under the chin. That is all I remember at this time." The testimony showed that, a few minutes before the accident, the deceased had talked with Grace Chappel, who attempted to assist him; that at that time there was no blood or other indications of injury, but that immediately after Carlos Hutchinson came in his car the deceased said nothing-was unconscious; that blood ran from his nose and mouth. Before Carlos came in the car, deceased was lying on his back, head to the south, and feet to the north. Immediately after, he was lying on his face, head to the west. This decision was adhered to after a most thorough-going examination in Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680, and these two decisions were approved and followed in Springer v. Railroad Co., 95 Kan. 408, 148 Pac. 611. The same rule was announced in the Dyerson Case and followed in Railway Co. v. Clinkenbeard, 77 Kan. 481, 94 Pac. 1001, and all three were approved and followed in McMahon v. Railway Co., 96 Kan. 271, 150 Pac. 566. In these decisions the doctrine was so carefully gone into and so clearly stated that mere reference thereto is sufficient." The doctrine of the last clear chance is applicable to the facts in this case. The defendant had the last clear chance to avoid the accident. He saw or could have seen the deceased lying in the road when 200 feet It is not necessary to analyze the numer-166 Mo. App. 153, 148 S. W. 209. court said: "However, the rule [of last clear chance] is so firmly fixed in this state, and so thoroughly supported by the great weight of authority, that it cannot now be changed. In Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857, the deceased was riding a bicycle, and on going down an incline on smooth asphalt pavement to a street on which a car was running and with which he [5] Complaint is made of some of the instructions given and refusal to give others, and that the court erred in refusal to enter judgment for the defendants on the answers to special questions. These and other alleged errors have been considered, but none have been found to warrant a reversal. The general charge to the jury was sufficient. The special questions were fairly answered by the jury, were supported by sufficient evidence, and were not inconsistent with the general verdict. The judgment is affirmed. |