Twining v. State
211 U.S. 78 (1908)

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U.S. Supreme Court

Twining v. State, 211 U.S. 78 (1908)

Twining v. State

No. 10

Argued March 19, 20, 1908

Decided November 9, 1908

211 U.S. 78

Syllabus

The judicial act of the highest court of a State, in authoritatively construing and enforcing its laws, is the act of the State.

Exemption from compulsory self-incrimination in the state courts is not secured by any part of the Federal Constitution.

There is a citizenship of the United States and a citizenship of the State which are distinct from each other, Slaughter House Cases, 16 Wall. 36, and privileges and immunities, although fundamental, which do not arise out of the nature and character of the National Government, or are not specifically protected by the Federal Constitution, are attributes of state, and not of National, citizenship.

The first eight Amendments are restrictive only of National action, and, while the Fourteenth Amendment restrained and limited state action, it did not take up and protect citizens of the States from action by the States as to all matters enumerated in the first eight Amendments.

The words "due process of law," as used in the Fourteenth Amendment, are intended to secure the individual from the arbitrary exercise of powers of government unrestrained by the established principles of private right and distributive justice, Bank v. Okely, 4 Wheat. 235, but that does not require that he be exempted from compulsory self-incrimination in the courts of a State that has not adopted the policy of such exemption.

Exemption from compulsory self-incrimination did not form part of the "law of the land" prior to the separation of the colonies from the mother country, nor is it one of the fundamental rights, immunities

Page 211 U. S. 79

and privileges of citizens of the United States, or an element of due process of law within the meaning of the Federal Constitution or the Fourteenth Amendment thereto.

The fact that exemption from compulsory self-incrimination is specifically enumerated in the guarantees of the Fifth Amendment tends to show that it was, and is to be, regarded as a separate right, and not as an element of due process of law.

When a question is no longer open in this court, adverse arguments, although weighty, will not be considered; and, under the doctrine of stare decisis, 83 U. S. 16 Wall. 36, and Maxwell v. Dow,176 U. S. 581, approved and followed.

Quare and not decided whether an instruction that the jury may draw an unfavorable inference from the failure of the accused to testify in denial of evidence tending to criminate him amounts to a violation of the privilege of immunity from self-incrimination.

74 N.J.L. 683, affirmed.

ALBERT C. TWINING and David C. Cornell, the plaintiffs in error, hereafter called the defendants, were indicted by the grand jury of Monmouth County, in the State of New Jersey. The indictment charged that the defendants, being directors of the Monmouth Trust and Safe Deposit Company, knowingly exhibited a false paper to Larue Vreedenberg, an examiner of the State Banking Department, with intent to deceive him as to the condition of the company. Such an act is made a misdemeanor by a statute of the State (P.L. 1899, p. 450, at 461), which is as follows:

"Every director, officer, agent or clerk of any trust company who willfully and knowingly subscribes or makes any false statement of facts or false entries in the books of such trust company, or knowingly subscribes or exhibits any false paper, with intent to deceive any person authorized to examine as to the condition of such trust company, or willfully or knowingly subscribes to or makes any false report, shall be guilty of a high misdemeanor and punished accordingly."

The defendants were found guilty on March 1, 1904, by the verdict of a jury, and judgment upon the verdict, that the defendants be imprisoned for six and four years respectively, was affirmed successively by the Supreme Court and the Court

Page 211 U. S. 80

of Errors and Appeals. There needs to be stated here only such part of what occurred at the trial as will describe the questions on which this court is authorized to pass. It appeared that, in February, 1903, the company closed its doors. The bank examiner came at once to the place of business for the purpose of examining the affairs of the company, and found there Twining and Cornell, who were, respectively, president and treasurer, as well as directors. Having soon discovered that, according to a book entry, there had been a recent payment of $44,875, for 381 shares of stock, the examiner inquired of the defendants by what authority this had been done, and was informed that it was done by authority of the board of directors, and the following paper was produced to him as a record of the transaction:

"Monmouth Trust & Safe Deposit Co., Asbury Park, N.J."

"A special meeting of the board of directors of this company was held at the office of the company on Monday, Feb. 9th, 1903."

"There were present the following directors: George F. Kroehl, S. A. Patterson, G. B. M. Harvey, A. C. Twining, D. C. Cornell."

"The minutes of the regular meeting held Jan. 15th, 1903, were read, and on motion duly approved."

"All loans taken since the last meeting were gone over carefully, and, upon motion duly seconded, were unanimously approved."

"A resolution that this company buy 381 shares of the stock of the First National Bank at $44,875 was adopted."

"On motion, the meeting adjourned."

This was the paper referred to in the indictment, and it was incumbent on the prosecution to prove that it was false and that it was "knowingly" exhibited by the defendants to the examiner. There was evidence on the part of the prosecution tending to prove both these propositions. The defendants called no witnesses, and did not testify themselves, although the law of New Jersey gave them the right to do so if they chose. In his charge to the jury, the presiding judge said:

"Now, gentlemen, was this paper false? In the first place,

Page 211 U. S. 81

the paper charged in the indictment certifies in effect that a special meeting of the board of directors of this company was held at the office of the company on Monday, February 9, 1903. There were present the following directors: George F. Kroehl, S. A. Patterson, G. B. M. Harvey, A. C. Twining, D. C. Cornell."

"Among other things appears a resolution of this company to buy 381 shares of the stock of the First National Bank at $44,875, which was adopted."

"Now, was that meeting held, or not?"

"The papers says that at this meeting were present, among others, Patterson, Twining and Cornell."

"Mr. Patterson has gone upon the stand and has testified that there was no such meeting to his knowledge; that he was not present at any such meeting; that he had no notice of any such meeting, and that he never acquiesced, as I understand, in any way in the passage of a resolution for the purchase of this stock."

"Now Twining and Cornell, this paper says, were present. They are here in court, and have seen this paper offered in evidence, and they know that this paper says that they were the two men, or two of the men, who were present. Neither of them has gone upon the stand to deny that they were present or to show that the meeting was held."

"Now it is not necessary for these men to prove their innocence. It is not necessary for them to prove that this meeting was held. But the fact that they say off the stand, having heard testimony which might be prejudicial to them, without availing themselves of the right to go upon the stand and contradict it, is sometimes a matter of significance."

"Now, of course, in this action, I do not see how that can have much weight, because these men deny that they exhibited the paper, and if one of these men exhibited the paper and the other did not, I do not see how you could say that the person who claims he did not exhibit the paper would be under any obligation at all to go upon the stand. Neither is under any obligation. It is simply a right they have to go upon the stand, and, consequently, the fact that they do not go upon the stand to contradict this statement in the minutes, they both denying, through their counsel and through their plea, that they exhibited the paper, I do not see that that can be taken as at all prejudicial to either of them. They simply have the right to go upon the stand, and they have not availed themselves of it, and it may be that there is no necessity for them to go there. I leave that entirely to you."

Further, in that part of the charge relating to the exhibition of the paper to the examiner, the judge said:

"Now gentlemen, if you believe that is so; if you believe this testimony that Cornell did direct this man's attention to it -- Cornell has sat here and heard that testimony and has not denied it -- nobody could misunderstand the import of that testimony, it was a direct accusation made against him of his guilt -- if you believe that testimony beyond a reasonable doubt, Cornell is guilty. He was not called upon to go upon the stand and deny it, but he did not go upon the stand and deny it, and it is for you to take that into consideration."

"Now Twining has also sat here and heard this testimony, but you will observe there is this distinction as to the conduct of these two men in this respect: the accusation against Cornell was specific by Vreedenberg. It is rather inferential, if at all, against Twining, and he might say -- it is for you to say whether he might say,"

"Well, I don't think the accusation against me is made with such a degree of certainty as to require me to deny it, and I shall not; nobody will think it strange if I do not go upon the stand to deny it, because Vreedenberg is uncertain as to whether I was there; he won't swear that I was there."

"So, consequently, the fact that Twining did not go upon the stand can have no significance at all."

"You may say that the fact that Cornell did not go upon the stand has no significance. You may say so because the circumstances may be such that there should be no inference drawn of guilt or anything of that kind from the fact that he did not go upon the stand. Because a man does not go upon the stand, you are not necessarily justified in drawing an inference of guilt. But you have a right to consider the fat that he does not go upon the stand where a direct accusation is made against him."

The question duly brought here by writ of error is whether the parts of the charge set forth, affirmed as they were by the Court of last resort of the State, are in violation of the Fourteenth Amendment of the Constitution of the United States.

Page 211 U. S. 90

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