Opinion modified and, in all other respects, reaffirmed.
Fred O. Wilson, Atty. Gen., Earl Anderson, Asst. Atty. Gen., Robert Morrison, Co. Atty., Pima Co., Morris K. Udall, Chief Deputy Co. Atty., Tucson, for appellant.
Scruggs, Butterfield & Rucker, Tucson, for appellee.
Udall, C. J., and Stanford, Phelps, De Concini and La Prade, JJ., concur.
[73 Ariz. 316] Upon the original hearing in this cause the claimed immunity of the defendant from prosecution under the provisions of article 2, section 19, of the state constitution was predicated upon the assumption of counsel, both for the state and for the defendant, that the provisions applied to witnesses testifying before a grand jury. As shown in the original opinion, defendant was so advised by counsel for the state, before he was called upon to testify before the grand jury.
Article 2, section 19, of the constitution reads as follows: "Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with bribery or illegal rebating, shall not be excused from giving testimony or producing evidence, when legally called upon to do so, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subject to any penalty or forfeiture for, or on account of, any transaction, matter, or thing concerning which he may so testify or produce evidence." (Emphasis supplied.)
The question presented to the court was: Is the constitutional provision above quoted self-executing or was the defendant required to claim his constitutional privilege in order to secure immunity under its terms? The defendant claimed it was self-executing and no claim of constitutional privilege therefore was necessary. The state took the opposite view. The same argument was extended to the provisions of section 43-2715, A.C.A.1939.
We believe both provisions are self-executing and therefore that a claim of privilege under article 2, section 10, of the state constitution is unnecessary to obtain immunity of witnesses when called upon to testify concerning offenses denounced therein for the reason that under the immunity statute any testimony they give under compulsion concerning any related [73 Ariz. 317] offense is not incriminating. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; Ex parte Critchlow, 11 Cal.2d 751, 81 P.2d 966. We will discuss this subject more fully later. Suffice it to say at this point that there are decisions supporting both contentions but we believe the majority
view to the effect that such privileges are self-executing to be the better and sounder rule and should be followed in this jurisdiction.
Whether our failure to observe the import of the words "charged with bribery or illegal rebating" contained in article 2, section 19, supra, when we had this constitutional provision before us on the original hearing, was due to a quirk of the mind or to a lack of perspicacity, we will not undertake to answer but whatever the cause, the words now stand out in full relief and convince us that the immunity granted therein applies only to witnesses called upon to testify against a defendant who has then been "charged with bribery or illegal rebating," and therefore have no application whatever to witnesses testifying before a grand jury. Its investigation may or may not result in anyone being charged with bribery or illegal rebating. In fact none was found in the instant case. In People v. Shawn,125 Cal.App. 55, 13 P.2d 866, it was held that the word "charged" as used in the penal code means a formal complaint; and in People v. Garnett,129 ...