280 F. 474 | 6th Cir. | 1922
(after stating the facts as above).
Whether the order of the court, directing the bankrupt to turn over bis private books and accounts to be used in evidence against himself, was or was not an invasion of his constitutional rights under the Fourth and Fifth Amendments to the Constitution of the United States, for the purposes of this case, may be conceded to depend upon whether he was, at that time in the lawful possession and entitled to the possession of these books.
In this case the referee in bankruptcy was ordered and directed by the court to distribute the composition fund deposited by the bankrupt. The trustee had no further duties to perform in relation to the bank
The Fourth Amendment to the Constitution of the United States declares that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause. The Fifth Amendment declares that no -person shall be compelled in any criminal case to be a witness against himself or be deprived of life, liberty, or property without due process of law.
In Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, it was said by the Supreme Court that both of these amendments relate to the personal security of citizens; they nearly run into- and mutually throw light upon each other; that it does not require actual entry upon premises and search for and seizure within the meaning of the Fourth Amendment, but that a compulsory production of a party’s private books and papers to be used against himself or hi» property in a criminal or penal proceeding, or for a forfeiture, is within the spirit and meaning of the amendment.
The Boyd Case, supra, was not a criminal case, but was a proceeding under the customs revenue laws of the United States to declare a forfeiture of defendant’s property. The fifth section of the Act of June 22, 1874 (Comp. St. § 5799), entitled “An act to amend the customs revenue laws,” etc., authorized a court of the United States, in revenue cases, on motion of the government’s attorney, to require the defendant or claimant to produce in court his private books, invoices, and papers, or else the allegations of the attorney to be taken as confessed.
Under the provisions of this section of that act the trial court made an order requiring the defendant Boyd to produce an invoice covering 29 cases of plate glass imported from Liverpool, England, into the port
It is unnecessary to review the cases above cited in detail. In Ball-mann v. Fagin, supra, the court declared in so many words that “a person against whom criminal proceedings are pending is no more bound to produce books of account, than to give testimony to the facts which they disclose.” This is the substance and effect of all the other cases as appears from the following extract from the opinion in Gouled v. U. S., supra:
‘‘‘It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746, 6 Sup. Ct. Rep. 524, in Weeks v. United States, 232 U. S. 383, 58 L. Ed. 652, L. R. A. 1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 64 L. Ed. 319, 40 Sup. Ct. Rep. 182)'have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is that such rights are declared to be indispensable to the ‘full enjoyment of personal security, personal liberty, and private property,’ that they are to be regarded as of the very essence of constitutional liberty, and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen — the right, to trial by jury, to, the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly overzealous executive officers.” .
It is also said in Flagg v. U. S., supra, that—
“What becomes of this defendant, important as it is, sinks into insignificance when compared with the right of the people of the United States to be protected from unlawful search.”
In the case of Adams v. New York, 192 U. S. 588, 24 Sup. Ct. 372, 48 L. Ed. 575, the question was not raised as to the means by which the evidence was secured. An objection was made to the introduction of the books and papers in evidence on the ground that they were incompetent and irreievant. The distinction between that case and the other cases is fully explained in the Weeks Case. In Matter of Harris, Bankrupt, 221 U. S. 274, 31 Sup. Ct. 557, 55 L. Ed. 732, the court made an order that the bankrupt should deposit his books of account in the office of the receiver, there to remain in the custody of the bankrupt; the latter to afford the receiver free opportunity to inspect the same, but the receiver to use and permit them to be used only for the purpose of the civil administration of the estate and not for any criminal proceeding. This order was affirmed by the Supreme Court upon the theory that, as the bankruptcy court could have enforced title in favor of the trustee, it could enforce possession ad interim in favor of the receiver, and that, in the properly careful provision to protect the bankrupt from use of the books in aid of prosecution, the bankrupt got all that he could ask. In reply to the claim of Harris that no statute protected him from the knowledge gained from the use of the books to find and gain evidence that might be used against him in a criminal prosecution, the court said: “That is one of the misfortunes of bankruptcy if it follows crime.” In that case the order was made in a civil proceeding, the books to be used only for the purpose of the civil administration of the bankrupt estate. The bankruptcy proceedings were still pending, and Harris was not entitled to these books as against his trustee, or as against the ad interim receiver. In this case the bankruptcy pro
There are no other assignments of error that it is necessary to discuss in detail. It is sufficient to say that no error intervened in the proceedings and trial prejudicial to the defendant, other than the order directing him to produce his private books of account to be used in evidence against himself, and for which error this judgment is reversed, and cause remanded for a new trial.