People v. Woodson , 309 Mich. 391 ( 1944 )

In October, 1941, defendant was called as a witness for the prosecution in the case of People v. Roxborough, 307 Mich. 575. He gave testimony there that was at variance with certain testimony given by him before a grand jury in December, 1939. The prosecution in the instant case is for perjury committed in the Roxborough trial.

The evidence relied upon to negative the testimony in theRoxborough Case was the testimony given by defendant before the grand jury and admissions made to Chester O'Hara, special prosecutor, Thomas Kenny, assistant attorney general, William Brusstar, assistant special prosecuting attorney, and Leo Mack, a police officer, and the testimony of Charles H. Mosley, a former partner of defendant, whose testimony corroborated the testimony given by defendant before the grand jury.

Defendant urges that it was error to admit any of his grand-jury testimony. It is to be noted that this testimony was received without objection. I am not in accord with the statement found in Mr. Justice WIEST'S opinion — "The right, guaranteed by the Constitution against self-incrimination, when duly invoked, is never lost or waived by forced compliance with a void court order and it remains void and is not validated by failure of counsel to object to it when offered by the prosecution."

Under the authority of In re Wyrick, 301 Mich. 273, immunity may be granted only upon the motion of the prosecuting attorney or attorney general. In the case at bar the so-called immunity granted defendant in the grand-jury proceedings was a nullity in so far as making him immune from prosecution for criminal acts testified to in such proceedings. Such testimony must be considered to have been given involuntarily and as such was inadmissible, but it does not follow that defendant could not waive the right to have this testimony rejected.

In People v. Lauder, 82 Mich. 109, 121, we said:

"A party may waive personal rights, although secured to him by law or by the Constitution. He may waive the right to a preliminary examination upon a criminal charge."

See, also, People, ex rel. Roach, v. Carter, 297 Mich. 577.

In my opinion defendant waived the right to have his grand-jury testimony excluded.

I concur in affirmance of the judgment.