JOHN W. BALLMANN, Plff. in Err., v.

UNITED STATES. (No. 308.)

(See S. C. Reporter’s ed. 186-196.)

Witness — privilege — self-lncf Imlna- tlon. — The possibility that the cash book whose production was sought by a Federal grand jury engaged in investigating the crim¬ inal liability of a national bank employee for a disappearance of cash from the bank vaults might show dealings likely to lead to a charge that its owner, then being proceeded against in the civil courts of the state as party to a

Note. — On the privilege of witness as to criminating questions — see notes to Cooper v.

433

Supreme Court of the United States.

Oct. Term,

‘‘bucket shop,” was an abettor of the guilty person, or might disclose a violation of the criminal laws of the state against that form of gambling, justifies his refusal, under the claim of his privilege against self-incrimina¬ tion, either to produce the book, or to answer questions manifestly intended to prove posses¬ sion or control as a preliminary to calling for the book.

[Nos. 240, 308.]

No. 2J/0 argued May 8, 1905. Decided Jan¬ uary 2, 1906. No. 308 submitted Novem¬ ber 21, 1905. Decided January 2, 1906.

APPEAL from the Circuit Court of the United States for the Southern Dis¬ trict of Ohio to review a judgment denying a writ of habeas corpus to inquire into a detention under a commitment for a con¬ tempt in the District Court for that Dis¬ trict. Affirmed. Also N ERROR to the District Court of the United States for the Southern District of Ohio to review such commitment. Re¬ versed.

The facts are stated in the opinion.

Mr. Lawrence Maxwell, Jr., argued the cause, and, with Messrs. Thomas F. Shay and Miller Outcalt, filed a brief for appellant in No. 240:

If Ballmann was protected by the 5th Amendment from answering the questions, the order committing him for refusing to answer is void, and he is entitled to be re¬ leased on habeas corpus.

Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; Counselman v. Hitchcock, 142 U. S. 547, 35 L. ed. 1110, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195; Re Ayers, 123 U. S. 443, 485, 31 L. ed. 216, 223, 8 Sup. Ct. Rep. 164.

There* was no evidence and there were no circumstances before the district court to justify it in rejecting the sworn state¬ ment of the witness that an answer to the questions might criminate him.

People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253, 68 N. E. 353; People ex rel. Taylor v. Forbes, 143 N. Y. 219, 38 N. E. 303; Janvrin v. Scammon, 29 N. H. 280; Counselman v. Hitchcock, 142 U. S. 547, 580, 35 L. ed. 1110, 1120, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195; Re Kanter, 117 Fed. 356; Chamberlain v. Willson, 12 Vt. 491, 36 Am. Dec. 356; Warner v. Lucas, 10 Ohio, .336; Lamson v. Boyden, 160 Ill. 613, 43 N. E. 781.

A witness who claims the privilege of silence is not required to admit that he is

State, 4 L.R.A. 766 ; Rice v. Rice, 11 L.R.A. 591; and Re Buskett, 14 L.R.A. 407.

On constitutional protection against being forced to furnish evidence to be used against one’s self in a civil case — see note to Levy t. Superior Court, 29 L.R.A. 811.

434

guilty. The protection of the Constitution is for the innocent as well as for the guilty, and he may require and claim and be ac¬ corded protection from the peril of indict¬ ment, although protesting his innocence.

People ex rel. Taylor v. Forbes, supra.

A wdtness or party in a Federal court is entitled to protect himself against self¬ crimination under a law of the state in which the court is sitting.

United States v. Saline Bank, 1 Pet. 100, 7 L. ed. 69.

There was no legal evidence to sustain the conviction for contempt for failing to produce a cash book.

Re Watts, 190 U. S. 1, 35, 47 L. ed. 933, 944, 23 Sup. Ct. Rep. 718.

In order to convict the defendant it was necessary for the government to prove that a book answering the description of the subpoena, containing transactions with A. Smith or A. Johnson, was in existence and under his control on April '7. There was no evidence of this fact or of the existence or possession of any cash book after April 3.

Iasigi v. Brown, 1 Curt. C. C. 401, Fed. Cas. No. 6,993; Langdell, Eq. PI. § 211; Hall v. Young, 37 N. H. 134; Baggott ▼. Goodwin, 17 Ohio St. 76.

Since the proceeding in the district court was a criminal case, the government was bound to establish the guilt of the defendant beyond a reasonable doubt.

Bessette v. W. B. Conkey Co. 194 U. S. 324, 48 L. ed. 997, 24 Sup. Ct. Rep. 665; New Orleans v. New York Mail S. S. Co. 20 Wall. 387, 22 L. ed. 354; Bullock Elec¬ tric & Mfg. Co. v. Westinghouse Electric dc Mfg. Co. 63 C. C. A. 607, 129 Fed. 105.

The presumption of the innocence of the accused has relation to every fact that must be established to prove guilt beyond a reasonable doubt.

Kirby v. United States, 174 U. S. 55, 43 L. ed. 894, 19 Sup. Ct. Rep. 574.

The presumption is evidence in favor of the accused.

Coffin v. United States , 156 U. S. 432, 39 L. ed. 481, 15 Sup. Ct. Rep. 394.

The district court and the circuit court have allowed conjecture and suspicion to take the place of proof. Their error is similar to that which was so severely con¬ demned in Chaffee v. United States, 18 Wall. 516, 21 L. ed. 911.

Whenever a witness is excused from giv¬ ing testimony upon the ground that an answer might criminate him, he cannot be

As to sufficiency of a statutory immunity to satisfy the constitutional guaranty against self -incrimination — see notes to United States v. James, 26 L.R.A. 418 ; and Interstate Com¬ merce Commission v. Baird, 48 L. ed U S

200 U. S.

Ballmann v. Fagin.

compelled to produce books or papers which would have that effect.

Lamson v. Boyden, supra; Boyle v. Smithman, 146 Pa. 255, 23 Atl. 397 ; Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524; 3 Wigmore, Ev. § 2264.

Solicitor General Hoyt argued the cause and filed a brief for appellee in No. 240:

Will the judgment in contempt of a court of competent jurisdiction, so far as resting upon the determination of a fact alone, be reviewed at all by this court?

Re Swan, 150 U. S. 637, 37 L. ed. 1207, 14 Sup. Ct. Rep. 225; Ex parte Davis, 112 Fed. 139; Ex parte Terry, 128 U. S. 289, 305, 32 L. ed. 405, 409, 9 Sup. Ct. Rep. 77.

So far as the contention is addressed to the merits of the case, and not to the juris¬ diction of the lower court ( O’Neal v. United States, 190 U. S. 38, 47 L. ed. 946, 23 Sup. Ct. Rep. 776), an erroneous conclusion in that regard can only be re¬ viewed on appeal or error, or in such appropriate way as may be provided.

Louisville Trust Co. v. Cominyor, 184 U. S. 18, 26, 46 L. ed. 413, 416, 22 Sup. Ct. Rep. 293; Ex parte Gordon, 104 U. S. 515, 26 L. ed. 814.

And while proceedings in contempt may be said to be sui generis, the present judg¬ ment is, in effect, a judgment in a criminal case, over which this court has no juris¬ diction on error.

Re Clietwood, 165 U. S. 443, 462, 41 L. ed. 782, 788, 17 Sup. Ct. Rep. 385; Tins¬ ley v. Anderson, 171 U. S. 101, 105, 43 L. ed. 91, 96, 18 Sup. Ct. Rep. 805; Cary Mfg. Co. v. Acme Flexible Clasp Co. 187 U. S. 427, 428, 47 L. ed. 244, 245, 23 Sup. Ct. Rep. 211.

The danger of extending the principle an¬ nounced in Counselman v. Hitchcock is that the privilege may be put forward for a sentimental reason or for a purely fanciful protection of the witness against an imag¬ inary danger, and for the real purpose of securing immunity to some third person who is interested in concealing the facts to which he would testify.

Broum v. Walker, 161 U. S. 595, 40 L. ed. 820, 16 Sup. Ct. Rep. 644. See also 3 Wigmore, Ev. pp. 2967, 2968.; Stephen, History of Crim. Law, p. 3102.

It is for the court to determine whether a direct answer may criminate the witness.

Best, Ev., § 128, pp. 175, 180; Greenl. Ev. § 451; United States v. Miller, 2 Crunch, C. C. 247, Fed. Cas. No. 15,772; Sanderson’s Case, 3 Cranch, C. C. 638, Fed. Cas. No. 12,297 ; United States v. McCarthy, 21 Blatchf. 469, 18 Fed. 87; Stevens v. State. 50 Kan. 712, 32 Pac. 350; Ford v. State, 29 Ind. 541, 95 Am. Dee. 658; Min- 200 U. S.

ters v. People, 139 Ill. 363, 29 N. E. 45; People v. Mather, 4 Wend. 229, 21 Am. Dec. 122; Com. v. Willard, 22 Pick. 476; Com. v. Kimball, 24 Pick. 366; Ex parte Senior, 37 Fla. 1, 32 L.R.A. 133, 19 So. 652; Rich- man v. State, 2 G. Greene, 532; Printz v. Cheeney, 11 Iowa, 469; La Fontaiwe v. Southern Underwriters Asso. 83 N. C. 132; Floyd v. State. 7 Tex. 215; Miskimmins v. Shaver (Ex parte Miskimins ) 8 Wyo. 392, 49 L.R.A. 831, 58 Pac. 411; Wyclcoff, Sea¬ mans, & Benedict v. Wagner Typewriter Co. 99 Fed. 158; Foot v. Buchanan, 113 Fed. 156; Ex parte Irvine, 74 Fed. 954.

In nearly all, if not all, the cases in which the privilege was claimed and allowed, it was apparent from the question asked, as pointed out by Chief Justice Marshall in United States v. Burr, Fed. Cas. No. 14,- 692e, that a direct answer would crimi¬ nate the witness. These cases contain no discussion of the question whether it is for the court or the witness to determine if an answer would criminate him, but it is ap¬ parent that it was regarded as a matter for the court.

King v. Gordon, 2 Dougl. K. B. 593 ; Paxton v. Douglas, 19 Ves. Jr. 224; Ma¬ loney v. Bartley, 3 Campb. 210; Cates v. Hardacre, 3 Taunt. 424; Rex v. Pegler, 5 Car. & P. 521; Fisher v. Ronalds, 16 Eng. L. & Eq. 417; Emery’s Case, 107 Mass. 172, 9 Am. Rep. 22; Re Graham, 8 Ben. 419, Fed. Cas. No. 5,659; Bank of Salina v. Henry, 2 Denio, 155; People ex rel. Taylor v. Seaman, 8 Misc. 152, 29 N. Y. Supp. 329; Cullen v. Com. 24 Gratt. 624; Smith v. Smith, 116 N. C. 386, 21 S. E. 196; Lister v. Boker, 6 Blackf. 439; Johnson v. Goss, 2 Yerg. 110; Lea v. Henderson, 1 Coldw. 146; Ex parte Clarke, 103 Cal. 352, 37 Pac.

Messrs. Lawrence Maxwell, Jr., Thom¬ as F. Shay, and Miller Outcalt submit¬ ted the cause for plaintiff in error in No. 308:

In a criminal proceeding based on written charges, the inquiry is confined to those charges.

. In proceedings in contempt for dis¬ obedience of an injunction, the proofs “must be limited to the particular offenses alleged against the defendant.”

Parlchurst v. Kinsman, 2 Blatchf. 76, Fed. Cas. No. 10,759.

Ballmann purged the contempt as to the book, under oath.

King v. Sims, 12 Mod. 511; 4 Bl. Com. 286; Rapalje, Contempt, § 119; United States v. Dodge, 2 Gall. 313; Fed. Cas. No. 14,975; Re Pitman, 1 Curt. C. C. 186, led. Cas. No. 11,184; Boyd v. Glucklich, 53 C. C. A. 451, 116 Fed. 131.

435

192-194

Supreme Court of the United States.

Oct. Term,

Solicitor General Hoyt submitted the cause for defendant in error in No. 308:

The findings of fact of the trial court are conclusive.

Davis v. Schwartz, 155 U. S. 636, 637, 39 L. ed. 291, 293, 15 Sup. Ct. Rep. 237; Grayson v. Lynch, 163 U. S. 472, 473, 41 L. ed. 231, 232, 16 Sup. Ct. Rep. 1064.

Mr. Justice Holmes delivered the opin¬ ion 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 from 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 commit¬ ment was void.

The case, so far as material to our deci-

sion, is as follows: On * April 7, 1905, Ball- mann was served with a subpoena 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 dur¬ ing the months of December, 1904, and Jan¬ uary and February, 1905.” He appeared before the grand jury, and on the same day the grand jury reported his failure to pro¬ duce the books and papers called for by the subpoena. The court entered an order as of that day, April 7, that he should produce all books and papers pertaining to his busi; ness. On April 8 the grand jury filed charges of contempt against him, in that “being required by said subpoena to produce a certain cash book in use in his business” he refused to do so, and also that he refused to answer the following question^: (a) “State what, on account No. 140, sheet No. 1, on this big ledger now in use in your busi¬ ness, 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 evi dence, 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 appeared and made the following answers: “I have not now, and neither at the time of, nor at any time 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 refer¬ red to in the order of the court entered on April 8, 1905, or any book showing trans- 436

actions 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 produce 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 pending “against me.” The petition referred to[194j charged Ballmann and others with conduct¬ ing a scheme of 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 hearing further evidence, reciting its former order and Ballmann’s failure to comply with it, ordered him to be impris¬ oned in accordance with the same. After¬ wards a bill of exceptions' was allowed, which set forth the proceedings of April 8. ft 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 evidence 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 Ball¬ mann’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, that the charge of contempt ip 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 of A. Smith or A. Johnson. We assume that the commit¬ ment was upon the charge and the order of April 8, not upon the order entered as of April 7. Upon that assumption if; might be enough to say that the court was not warranted in finding Ballmann guilty by any evidence which it had before it. There was nothing to show that his answer was not literally true. Re Watts, 190 U. S. 1,

35, 36, 47 L. ed. 933, 944, 23 Sup. Ct. Rep.

that Ballmann had in his possession a book which he was privileged from producing, and which he wished not to produce. Sup¬ pose, also, that he were summoned as he was in this case, and that the book did not show

200 IT. S.

United States, Use of Hill v. American Surety Co.

194-197

the dealings ’described, — he could not be criticised very severely for avoiding, if possi¬ ble, the discrediting claim of privilege, by an answer literally exact. If, . then, he should be asked in general terms to pro¬ duce his cash book, he would not be debarred from pleading his, privilege by what he had said before. And without any inclination to enlarge a witness’s rights beyond the settled requirements of' law, we think that the privilege might extend to any question, the manifest object of which was to prove possession or control as a preliminary to calling for the book.

To determine whether tlie case which we have 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 inves¬ tigation, according to the government’s statement, was the criminal liability of some employee of a national bank from the vaults of which a large amount of cash had dis¬ appeared. The book very possibly may have disclosed dealings with the person or per¬ sons naturally suspected, and, especially in view of the- charges that Ballmann kept a “bucket shop,” dealings of a nature likely to lead to a charge that Ballmann was an abet¬ tor of the guilty man. If he was, he was guilty of a misdemeanor under Rev. Stat.

§ 5209, U. S. Comp. Stat. 1901, p. 3497, and no more bound to produce the book than to give testimony to the facts which it dis¬ closed. Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524: Counselman v. Hitchcock, 142 U. S. 547, 35 L. ed. 1110, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195.

Not impossibly Ballmann 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 call attention to another, less likely to be known. As we have said, he set forth that there were many 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 sit¬ ting. According to United States v. Saline Bank, 1 Pet. 100, 7 L. ed. 69, he was exon¬ erated from disclosures which would have exposed him to the penalties of the state law. See Jack v. Kansas (decided this term), 199 U. S. 372, ante, 234, 26 Sup.,Ct. Rep. 73. One way or the other we are of

opinion ’that Ballmann could not he re¬ quired to produce his cash book if he set up that it would tend to criminate him.

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 200 U. S- U. S., Book 50.

think that he was giving an answer which, whether too sharp or not, might be true even if he had a cash book within his con¬ trol. His denial was limited explicitly, and with no disguise in the form of statement, to a cash book showing transactions under the name of 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 privi¬ lege is that a oash book existed, that Ball¬ mann 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 ques¬ tions as distinguished from the production of tfye book. See Counselman v. Hitchcock, 142 U. S. 547, 35 L. ed. 1110, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195.

We are aware that the courts below came to their conclusions upon the assumption that Ballmann denied generally the posses¬ sion of a cash book, and that he was before the court for disobedience to an order to produce it. It may be that he now escapes liability as much by luck as by desert. But he is entitled to demand a judgment accord¬ ing to the record, and we are of opinion that, on the 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 ending the case.

Judgment of the District Court reversed.

Judgment of the Circuit Court affirmed.

Mr. Justice Harlan and Mr. Justice McKenna dissent.

’UNITED STATES for the Use and Benefit[197] of DANIEL H. HILL, and Howard H.