113 F. 156 | U.S. Circuit Court for the District of Northern Mississippi | 1902
(after stating the case as above), i. It is a rule of the common law that a witness will not be compelled to answer any question, the reply to which would supply evidence by which he could be convicted of a criminal offense. This doctrine was firmly implanted in the common law of Great Britain and of the colonies long before the adoption of the constitution of the United States. The principle is held so sacred in this country that it is embodied in the respective constitutions of all the states, as well as in the federal constitution. The principle, as applied to this case, is found in the fifth amendment to the constitution: “No person shall be compelled in any criminal case to be a witness against himself.” The question here is, does this provision protect the petitioner in declining to answer the questions propounded to him? The general power of the court to punish a witness for contempt who refuses to answer is unquestioned. But that power is limited by the language quoted from the constitution. Any exercise of jurisdiction or power violative of this provision is void, and the witness imprisoned by an order made in excess of the court’s authority is entitled to be discharged on the writ of habeas corpus. Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117; Rev. St. § 752. Was the order of the district court requiring the petitioner to answer these questions, and committing him for his refusal to answer, in excess of the court’s authority?
In 1890 Charles Counselman was subpoenaed before the United
“It could not and would not prevent the use of liis testimony to search out other testimony to be used in evidence against: him or his properly in a criminal proceeding in such court. It could not prevent the obtaining and the use of witnesses and evidence wiiich would be attributable directly to the testimony he might give under compulsion, and on which ho might be convicted, when otherwise, and if he had refused to answer, ho could nc t possibly have been convicted.” And again: “We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him can have the effect of supplanting the privilege conferred by the constitution of the United States. Section SCO of the Itevised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that: prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecutions for the offense to which the question relates.” The court concluded: “From a consideration of the language oí' the constitutional provision, and of all the authorities referred to, wo arc clearly of opinion that the appellant was entitled to refuse, as he did, to answer.” Counselman v. Hitchcock, 142 U. S. 547, 564-585, 12 Sup. Ct. 195, 198-207, 35 L. Ed. 1110, 1114-1122.
By the unanimous judgment of the supreme court the appellant, Counselman, was discharged from custody.
That case seems conclusive of the case at bar. But the learned district attorney contends that “the case of Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819, is virtually a repeal of the case of Counselman v. Hitchcock.” Is that contention true? After' the opinion in Counselman v. Hitchcock was rendered, the congress passed an act, approved February 11, 1893, to give immunity to witnesses in certain cases. It provides, in brief, that no person shall be excused from testifying in interstate commerce actions, or from producing books, papers, contracts, etc., before the interstate commerce commission, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of congress entitled “An act to regulate commerce,” ap
2. It is true that the witness cannot avoid answering questions upon his mere statement that his answers to them will tend to criminate him. It is for the judge to decide whether his answer will reasonably have such tendency, or whether it will furnish an element or link in the chain of evidence necessary to convict him. In determining whether or not the witness is entitled to the privilege of silence, the court may look at all o.f the circumstances of the case, and determine whether or not there is reasonable ground to appre
3. It is set up in the answer filed by the district attorney that the petitioner, when carried before the court upon his failure to answer questions before the grand jury, was assured by the court that 110 information given by him in his answers to the questions would or could be used against him in any prosecution in any'court of the United States. The petitioner could not be required to waive his constitutional privilege upon such an assurance by the court, fie has a right to stand upon his constitutional privilege, notwithstanding such assurance, and to remain silent whenever any question is asked, the answer to which may tend to criminate him. Temple v. Com., 75 Va. 892.
4. It is argued by the district attorney that some of the questions asked (we have not stated them all) could have been answered without endangering petitioner, and that, if any one of them did not, call for a criminating answer, he is not entitled to relief. We cannot accept that view. He was carried before the court, and the court required him to answer all of the questions. He is under commitment for refusal to answer all. It was one examination, relating to one subject, and the questions culminated in an effort to show the witness’ connection with the misdemeanor charged. Where there is a series of questions, the examiner cannot “pick out one, and say, if that be put, the answer will not criminate him.” If it is one step having a tendency to criminate him, he is not compelled to answer. People v. Mather, 4 Wend. 230, 254; Paxton v. Douglas, 16 Ves. 240, 243.
The act to protect trade and. commerce against unlawful restraints and monopolies is the lav/ of the land, and should be enforced. We would make no order that would tend to obstruct its proper enforcement. It confers jurisdiction on the United States courts, and provides a remedy in a civil action “by way of petition setting forth the case, and praying that such violation shall be enjoined or otherwise prohibited.” 26 Stat. 209, § 4. This provision does not prevent the criminal prosecution of those guilty of its violation. But the procedure against violators of the act must conform to lav/. The penalties of fine and imprisonment provided by the act may be imposed by the same procedure sustained by the same kind of evidence, either direct or circumstantial, that is admissible in prosecutions for other misdemeanors, and it ought not to be necessary, and certainly is
It is ordered that the petitioner, Lawrence Foot, be discharged from custody. Petitioner discharged.
PARDEE and McCORMICK, Circuit Judges, who were present at the hearing of this case, concur in this opinion.