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possession of the books and papers of the alleged bankrupts and of the firm. On February 16th, Dier informed the court that the District Attorney of New York County had applied to the Receiver for the production of these books and papers before the Grand Jury, and asked for the rule nisi against the Receiver and the District Attorney, and upon a hearing thereof an injunction to prevent the use of such books and papers against him before the Grand Jury, on the ground that they would incriminate him and that his right to refuse to testify against himself under the Fourth and Fifth Amendments would thus be violated by the process of the Federal District Court. Judge Learned Hand, sitting in bankruptcy, discharged the rule and refused to enjoin the proposed use of the books. Judge Hand's action was based on the ruling of this Court in Johnson v. United States, 228 U. S. 457. He quoted the language used in the Johnson Case, "A party is privileged from producing the evidence but not from its production." He alluded to the circumstance that in the Johnson Case there were both title and possession in the Trustee, whereas in this case, the books and papers were in the hands of the Receiver who has no title but that, he said, made no difference. We agree with this view and hold that the right of the alleged bankrupt to protest against the use of his books and papers relating to his business as evidence against him ceases as soon as his possession and control over them pass from him by the order directing their delivery into the hands of the Receiver and into the custody of the court. This change of possession and control is for the purpose of properly carrying on the investigation into the affairs of the alleged bankrupt and the preservation of his assets pending such investigation, the adjudication of bankruptcy vel non, and if bankruptey is adjudged, the proper distribution of the estate. It may be that the allegation of bankruptcy will not be sustained, and in that case, the alleged bankrupt will be entitled to a return of his property including his books and papers; and when they are returned, he may refuse to produce them and stand on his constitutional rights. But while they are, in the due course of the bankruptcy proceedings, taken out of his possession and control, his immunity from producing them, secured him under the Fourth and Fifth Amendments, does not enure to his protection. He has lost any right to object to their use as evidence because, not for purpose of evidence, but in the due investigation of his alleged bankruptcy and the preservation of his es
tate pending such investigation, the control and possession of his books and papers relating to his business were lawfully taken from him.
NOTE. In the important case of Boyd v. United States (1886), 116 U. S. 616, Mr. Justice Bradley discussed with much learning the contest in England to protect Englishmen against unreasonable searches and scizures and the use in the American colonies of writs of assistance. The great judgment of Lord Camden delivered in the case of Entick v. Carrington (1765), 19 Howell's State Trials, 1029, is one of the landmarks of English constitutional law and it was to preserve the principles there laid down that the provisions as to unreasonable searches and seizures and self-incrimination were inserted in the Constitution. While the two are separately stated in the Fourth and Fifth Amendments, they are intimately related. Said Mr. Justice Bradley:
They throw great light on each other. For the "unreasonable searches and seizures" condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man "in a criminal case to be a witness against himself," which is condemned in the Fifth Amendment, throws light on the question as to what is an "unreasonable search and seizure" within the meaning of the Fourth Amendment. And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.
In discussing the production of the books and papers of a corporation in Wilson v. United States (1911), 221 U. S. 361, Mr. Justice Hughes said:
They have reference to business transacted for the benefit of the group of individuals whose association has the advantage of corporate organization. But the corporate form of business activity, with its charter privileges, raises a distinction when the authority of government demands the examination of books. That demand, expressed in lawful process, confining its requirements within the limits which reason imposes in the circumstances of the case, the corporation has no privilege to refuse. It cannot resist production upon the ground of self-incrimination, Although the object of the inquiry may be to detect the abuses it has committed, to discover its violations of law and to inflict punishment by forfeiture of franchises or otherwise; it must submit its books and papers to duly constituted authority when demand is suitably made. This is involved in the reservation of the visitatorial power of the State, and in the authority of the National Gov
ernment where the corporate activities are in the domain
The foregoing passage was quoted with approval by Mr. Chief Justice Taft in Essgee Company of China v. United States (1923), 262 U. S. 151.
Letters and papers in the mail can only be opened and examined under the authority of a proper warrant, Ex parte Jackson (1878), 96 U. S. 727, but letters voluntarily written by the accused in prison and which came into the possession of the prison officials under the established rules of the prison may be used in evidence, Stroud v. United States (1919), 251 U. S. 15. A bankrupt who without objection files schedules of his assets and liabilities which, standing alone, do not furnish proof of crime may refuse to answer questions concerning them on the ground that his answers would tend to incriminate him. By filing his schedules he did not waive his privilege under the Fifth Amendment, Arndstein v. McCarthy (1920), 254 U. S. 71. But a witness who introduces exhibits in a suit for infringement of a patent, which exhibits were impounded by the court upon the dismissal of the suit, is not subjected to an unreasonable seizure nor made to bear witness against himself by the delivery of the exhibits to the District Attorney for use before the grand jury in the investigation of a charge of perjury brought against the witness, Perlman v. United States (1918), 247 U. S. 7. "Having let go the exhibits, so that they have become a part of the judicial records, he is not now in position to suppress the story they tell." Unless some form of constraint or compulsion or extortion is used, there is no immunity, Holt v. United States (1910), 218 U. S. 245. The statement of a witness that his answer to a question would incriminate him is not conclusive. The fact is to be determined primarily by the trial judge, Mason v. United States (1917), 244 U. S. 362. In the trial of Aaron Burr, In re Willie (1807), Federal Cases, No. 14692e, the rule to be applied in such cases was stated by Chief Justice Marshall in these words:
When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows.
The danger to be apprehended must be real and appreciable for the constitutional protection "does not extend to remote possibilities out of the ordinary course of law," Heike v. United States (1913), 227 U. S. 131.
Valuable discussions of unreasonable searches and seizures and of self-incrimination may be found in Fraenkel, Concerning Searches and Seizures, Harvard Law Review, XXXIV, 361; McGovney, Self-criminat
ing and Self-disgracing Testimony, Jowa Law Bulletin, V, 175; and Kidd, The Right to Take Finger-prints, Measurements and Photographs, California Law Review, VIII, 25.
SECTION 4. DOUBLE JEOPARDY.
UNITED STATES v. JOSEF PEREZ.
SUPREME COURT OF THE UNITED STATES. 1824.
Certificate from the Circuit Court of the United States for the Southern District of New York.
STORY, JUSTICE, delivered the opinion of the court.
The prisoner, Joseph Perez, was put upon trial for a capital offense, and the jury, being unable to agree, were discharged by the court from giving any verdict upon the indictment, without the consent of the prisoner, or of the attorney for the United States. The prisoner's counsel, thereupon, claimed his discharge as of right, under these circumstances; and this forms the point upon which the judges were divided. The question, therefore, arises, whether the discharge of the jury, by the court, from giving any verdict upon the indictment, with which they were charged, without the consent of the prisoner, is a bar to any future trial for the same offense. If it be, then he is entitled to be discharged from custody; if not, then he ought to be held in imprisonment until such trial can be had.
We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially, courts should be extremely careful how they interfere with any
of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office. We are aware, that there is some diversity of opinion and practice on this subject, in the American courts; but, after weighing the question with due deliberation, we are of opinion, that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial. A certificate is to be directed to the circuit court, in conformity to this opinion.
CERTIFICATE.-This cause came on, &c. On consideration whereof, it is ordered by the court, that it be certified to the circuit court of the district of New York, that, under the circumstances stated in the record, the prisoner, Joseph Perez, is not entitled to be discharged from custody, and may again be put to trial, upon the indictment found against him, and pending in the said court.
THOMAS MOORE, Executor of Richard Eels, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF
SUPREME COURT OF THE UNITED STATES. 1852.
This case was brought up from the Supreme Court of the State of Illinois, by a writ of error issued under the 25th section of the Judiciary Act.
MR. JUSTICE GRIER delivered the opinion of the court.
The plaintiff in error was indicted and convicted under the criminal code of Illinois for "harboring and secreting a negro slave." The record was removed by writ of error to the Supreme Court of that State.
It has been urged that this act is void, as it subjects the delinquent to a double punishment for a single offense. But we think that neither the fact assumed in this proposition, nor the inference from it, will be found to be correct. The offenses for which the fourth section of the act [of Congress] of 12th Feb