delivered the opinion of the court.
Glickstein, an adjudicated bankrupt, was indicted for perjury in having falsely sworn in the bankruptcy proceeding, while under examination before a referee, as required by the seventh section, subdivision 9, of the Bankruptcy Act of 1898. The indictment was demurred to on the following grounds: “a. A prosecution for perjury against a bankrupt at'a.meeting of his creditors will not lie; b. The indictment was based upon testimony given by the bankrupt affecting the ádministration and settlement of his estate; c. A person cannot be compelled in any criminal case to be a witness against himself.” At the trial which followed the overruling of the demurrer the testimony of Glickstein, which was the subject of the indictment, was offered and objected to on the same grounds upon which thé demurrer was based, and exceptions were taken to the admission of the testimony in evidence.
. When the legality of a conviction and sentence of Glickstein was before the court below, as the result of error prosecuted by him, the court, stating’the facts which we have recited, certified the following question:- “Is subsection 9 and the immunity afforded by it applicable to a prosecution for perjury committed by the bankrupt when examined under it?”
Section 7, subdivision 9, which we áre required to consider in order to solve the question,, is as follows:.
“The bankrupt shall . . .. (9) When present at the first meeting of his creditors, an'd- at such other times as the court shall order, submit to an examination concerning the conducting of his business, the-cause of his bankruptcy; his dealings with his creditors and. other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate; but no testimony given
. It is difficult to determine from the contentions urged in favor of an affirmative answer, whether it is deemed the solution of the problem requires us to decide a question of constitutional right or simply calls for an interpretation of the provision of the Bankruptcy Act to which the question relates. To exclude irrelevant matter and to confine our attention to the precise subject to be passed upon, we state certain propositions which are not open to controversy because foreclosed by decisions of this court, or which if not expressly foreclosed are so indubitably the result of settled principles as to causé them also to be not subject to reasonable dispute.
• 1st. It is undoubted that the constitutional guarantee of the Fifth Amendment does not deprive the law-making authority of the power to compel the giving of testimony even although the testimony when given might serve to incriminate the one testifying, provided immunity be accorded, the immunity, of course, being required to be complete;, that is to say, in all respects commensurate with the protection guaranteed by the constitutional limitation. The authorities which establish this eleméntary proposition are too numerous to be cited, and we therefore simply refer to a few of the leading cases on the subject.
Counselman
v.
Hitchcock,
2nd. As the authority, which the proposition just stated embraces exists, and as the sanction of an oath and the imposition of a punishment for false swearing are inherently a part of the power to compel the. giving of testimony, they are included in -that grant' of authority and are not prohibited by the immunity as to self-inerimination. Of
With these propositions in hand it follows that the precise question for . decision is, Did the guarantee of immunity, contained in the ninth subdivision of .§ 7 of the Bankruptcy Act bar a prosecution for perjury for false swearing in giving testimony under the, command of the. section? Im other words, the sole question is, Does the statute, in compelling the giving of testimony, confer an immunity wider than that guaranteed by the Constitution? The argument to maintain that it does' is, that as the statute provides for immunity and does not contain the
The argument that because the section does not contain an expression of the reservation of a right to prosecute for perjury in harmony with .'the reservations in Rev. Stat.) § 8.60, and the act of 1893, therefore it is to be presumed that it was intended that no such right should exist, we think, simply begs the question for decision, since it is impossible in reason to conceive that Congress commanded the giving of .testimony, and at the same time intended that false testimony might be given with impunity in the absence of the most express and specific command to that effect.
Bearing in mind the .subject dealt with we think the reservation of the right to prosecute for perjury made in the
Some of the considerations which we have pointed out were accurately, expounded in Edelstein v. United States, 149 Fed. Rep. 636, by the Circuit Court of Appeals for the Eighth-Circuit, and in Wechsler v. United States, 158 Fed. Rep. 579, by the Circuit Court of Appeals for the Second Circuit. And this leads us to observe that the necessary result of the conclusion now reached is to disapprove the opinions in In re Marx et al., 102 Fed. Rep: 676, and In re Logan, 102. Fed. Rep. 876.
It follows that the question propounded must receive a' negative answer, and our order will be,
Question certified answered No.