delivered the opinion of the court.
One of these cases is a writ of error issued by this court to the United States District Court upon a judgment committing the plaintiff in error for contempt, the other an appeal frоm the Circuit Court for the same district upon a judgment denying the writ of habeas corpus, which was applied for on the' ground that the same commitment was void.
The case so far as material to our decision, is as follows: On *193 April 7, 1905, Ballman was served with a subpcena to appear before the grand jury and to bring with him " cash book, ledger, letter press copy book, and all sheets showing transactions under the name of A. Smith and A. Johnson during the months of December, 1904, and January and February, 1905.” .He appeared before the grand jury, and on the samе day the grand jury reported his failure to produce the books and papers called for by the subpoena, The court entered an order as of that day, April 7,- thаt he should produce all books and papers pertaining to his business. On April 8 the grand jury filed charges of contempt against him, in that “being required by said subpeena to produсe a certain cash book in use in his business” he refused to do so, and also that he refused to answer the following questions : (a) “ State what on account No. 140, sheet # 1, on this- big ledgеr now in use in your business, .these figures under the word 'folio/ on the debit side of the account, to wit: No. 349, 349, 349,-349, 349, and 351 refer to?” (b) “Do not these figures 349 in your-handwriting, on account No. 140, refer to the folios in your cash book in use in your business in January, 1905?” On the same day, April 8, the court, after .hearing evidence, ordered Ballmann to produce the said cash book and to answer the above questions at noon on April 10, or to be committed to jail until compliance or discharge by due process of law.
On April 10 Ballmann appearеd and made the following answers: “I have not now, and neither at the time of nor at any tim'e since the service of the first subpoena upon me in this matter have I had in my possession or under my custody or control the book referred to in the order of the court entered on April 8, 1905, or any book showing transactions under the names-of A. Smith or A. Johnson, and am unable to produce the same. ”— “I decline to answer the questions contained in said order of April 8„ 1905, on the ground that it might tend to criminate me and in this connection I рroduce copy of a petition filed against me and others by Emanuel Oppenheimer in the court of com-' mon pleas of .Hamilton county, being case No. 126,824, and I state that-there are many other actions of the same kind pend *194 ing against me. ” The petition referred to charged Ballmann and others with conducting a scheme оf gambling known as a “bucket shop,” criminal conduct under the laws of Ohio, the State where the case was being tried.
Thereupon, upon the same day,' the .court, without' heаring further evidence, reciting its former order and Ballmann’s failure to comply with it, ordered him to be imprisoned in accordance with the same. Afterwards a bill of exceрtions was allowed, which set forth the proceedings of April 8. It appears that on that day the foreman of the grand jury testified that Ballmann was inquired of with reference to the cash book, and said that there was no such book. (It is fair to read the statement as meaning the same as his formal answer on the 10th and no more.) Other witnesses gave еvidence tending to prove the existence of a cash book, .although not, or at least not except by very remote inference, a cash book showing transactions under the name of A. Smith or A. Johnson. It also appears that Ballmann’s counsel said to the court, “As to the book, we say to your honor that we haven’t got.it” and also handed the court a paper from Ballmann, reading, “As to the questions asked, I .refuse to answer, as they might tend to criminate me.
It appears to us, and it hardly is denied, thаt the charge of contempt in failing to produce a' book, is confined, as it was taken, by Ballmann’s answer to be confined, to a failure to produce a cash book showing transactions under the name A. Smith or A. Johnson. We assume that the commitment was upon the charge , and the order of April 8, not upon the order entered as оf April 7. Upon that assumption it might be enough to say that the court was not warranted in finding Ball-mann guilty by any evidence which it had before it. There was nothing to show that his answer was not literally true.
In re Watts & Sachs,
To determine whether the case-which we havе supposed is the case at bar we must consider whether we can see reasonable grounds for believing that the book was privileged, or that it was not — it does not matter for our purposes in which form the question is put. The subject under investigation, according to the Government’s statement, was the criminal liability of some employe of a national bank from the vaults of which a large amount of cash had disappeared. The book very possibly may have disclosed dealings with the person .or persоns naturally suspected, and, especially in view of the charges that Ball-mann kept a "bucket shop, ” dealings of a nature likely to lead to a charge that Ballmann was an abettor of the guilty man. If he was, he was guilty of a misdemeanor under Rev. Stat. § 5209, and no more bound to produce the book than to give testimony to the facts which it disclоsed.
Boyd
v.
United States,
Not impossibly Ballman took this aspect of the matter for granted, as one which would be perceived by the court without his disagreeably emphasizing his own fears. But he did сall attention to another less likely to be known. As we have said, he set forth that there were piany proceedings on foot against him as party to .a "bucket shop,” and so subject to the criminal law of the State in which the grand jury was sitting. According to
United States
v.
Saline Bank,
But it is said that he did not set it up, but on the contrary denied the existence of the book. We are not of that opinion. We think that he was giving an answer which, whether too sharp or not, might be true even if he had a cash bоok within his control. His denial was limited explicitly and with no disguise in the form of statement to a cash book showing transactions under the name A. Smith or A. Johnson. It called attention to the limit by its form. And when thereupon he was asked questions, the manifest meaning of which was to fasten upon him an admission that there was a cash book, he at once declined to answer. Of course it may be that he declined because he knew that further answers would disclose the falsity of his first denial. But the natural explanation of the claim of privilеge is that a cash book existed, that Ballmann knew it, and that he believed that if produced it would criminate him in one of the two ways which we have explained. Nothing more need be said about the questions as distinguished from the production of the book. See
Counselman
v.
Hitchcock,
We are aware that the courts below came to their conclusions upon the assumption that Ballmann denied generally the possession of a cash book, and that he was before the court for disobedience to an order to produсe it. It may be that he now escapes liability as much by luck as by desert. But he is entitled to demand a judgment according to the record, and we areof opinion that on thе record fairly construed the judgment of the District Court should be reversed. This decision makes any other than formal action upon the habeas corpus unnecessary,- and therefore the judgment of the Circuit Court may be affirmed for the purpose of endipg the case.
Judgment of the District Court reversed.
Judgment of the Circuit Court affirmed.