A witness who voluntarily testifies cannot resist the effect of
the testimony by claiming that he could not have been compelled to
give it. The time to avail of a statutory protection is when the
testimony is offered.
The provision in the Bankruptcy Act of July, 1898, requiring the
bankrupt to testify before the referee, but providing that no
testimony then given by him shall be offered in evidence against
him in any criminal proceeding, does not amount to exemption from
prosecution, nor does it deprive the evidence of its probative
force after it has been admitted without objection in a criminal
prosecution against the bankrupt in a state court.
The facts are stated in the opinion of the court.
Page 194 U. S. 575
MR. JUSTICE McKENNA delivered the opinion of the Court.
Plaintiff in error was convicted upon information filed in the
District Court of the Eighth Judicial District of the State
Page 194 U. S. 576
of Montana of the crime of obtaining money under false
pretenses. The judgment of conviction was affirmed by the supreme
court of the state. 27 Mont. 282\.
The false pretenses consisted of a false statement in writing
made to the Royal Milling Company, a corporation, concerning his
assets and liabilities, whereby he induced the company to sell him
goods of great value.
Plaintiff in error testified in his own behalf, and during the
cross-examination he was questioned in regard to statements made by
him in testimony made before the referee in bankruptcy in his own
proceedings. No objection was made.
In view of the examination, the trial court instructed the jury
as follows:
"The court instructs the jury that the fact that the defendant
testified in an insolvency proceeding in obedience to a citation
did not deprive him of his right to refuse to answer questions
tending to criminate him, if he did answer any such questions, and
an admission made by him in such proceeding is voluntary and
competent evidence in a criminal prosecution subsequently
inaugurated, where he was not in custody or charged with a criminal
offense when he made such admission, if he did make any such."
Plaintiff in error excepted to the instruction as follows:
"For the reason that said instruction invades the province of
the jury, in that it directs their attention to the alleged
admissions of the defendant, and is a charge upon the effect and
weight of the evidence. The defendant excepts to the instruction
for the further reason that the same does not correctly state the
law, in this: that it appears from the testimony that the defendant
had testified upon an examination before a referee in bankruptcy,
held pursuant to the provisions of the Act of Congress approved
July 1, 1898, which said act provides as follows: Chapter III,
section, etc., 'But no testimony given by him [upon his
examination] shall be offered in evidence against him in any
criminal proceeding.' And the said instruction is against the law.
"
Page 194 U. S. 577
The instruction seems to oppose the provisions of the statute,
but the circumstances of the case must be considered. There was no
objection made to the introduction of the testimony, and as we
understand the instruction, it was but the expression of the value
of the testimony. The contention of plaintiff in error must have
been in the trial court as it was in the supreme court, and is here
-- to-wit, that section 7 of the Bankruptcy Act grants more than a
mere immunity against the admission in evidence of the testimony
given before the referee in bankruptcy -- that it grants him
protection from prosecution for any crime growing out of the
transaction about which he was examined, and this necessarily to
secure to him to full protection of that clause of the Constitution
of the United States which provides that "no person shall be
compelled in criminal cases to be a witness against himself." Upon
this broad contention he must now rely. A narrower contention might
have been yielded to by the state courts. It certainly should have
been submitted to them. The statute does not prohibit the use of
testimony against the consent of him who gave it. It prescribes a
rule of competency of evidence which may or may not be insisted
upon. It does not declare a policy the protection of which cannot
be waived. And the time to avail of it is when the testimony is
offered. After the testimony is admitted, its probative force
cannot be limited. This could not be contended even under the
broader provision of the Constitution. A witness who voluntarily
testifies cannot resist the effect of the testimony by claiming
that he was not compellable to give it.
In the case at bar, the court dealt with testimony which had
been admitted without question or objection. We are brought
therefore to the broad and ultimate contention of the plaintiff. We
think it is untenable. There is no ambiguity in section 7 of the
Bankrupt Act. It requires a bankrupt to submit to an examination
concerning his property and affairs, and provides: "But no
testimony given by him shall be offered in evidence against him in
any criminal proceeding."
Page 194 U. S. 578
It does not say that he shall be exempt from prosecution, but
only, in case of prosecution, his testimony cannot be used against
him.
The two things are different, and cannot be confounded. The
difference is illustrated by the different constructions this Court
has given to section 860 of the Revised Statutes, and the
provisions of the Act of Congress of February 11, 1893 c. 83.
In
Counselman v. Hitchcock, 142 U.
S. 547, it was contended that the protection of section
860 was that of the Constitution, and it was sought to compel a
witness to testify to matters which he claimed would incriminate
him. This Court held against the contention, and the witness was
justified. We did not attempt to extend the section to the
prohibition of criminal prosecutions, but confined its immunity to
that which was expressed, to-wit, that the testimony given should
not "be given in evidence, or in any manner used, against him or
his property or estate, in any court of the United States, in any
criminal proceeding. . . ."
The Act of February 11 was different and the ruling upon it was
different. It provided as follows:
"But no person shall be prosecuted or subjected to any penalty
or forfeiture for or on account of any transaction, matter, or
thing concerning which he may testify, or produce evidence,
documentary or otherwise, before said commission, or in obedience
to its subpoena or the subpoena of either of them, or in any such
case or proceeding."
It was held in
Brown v. Walker, 161 U.
S. 591, that the act was virtually one of "general
amnesty," and the protection of the Constitution was "fully
accomplished by the statutory immunity." As in
Counselman v.
Hitchcock, a witness before a grand jury which was
investigating alleged violations of the Interstate Commerce Act
claimed that questions addressed to him "would tend to accuse and
incriminate him." Upon proceedings in the district court he was
adjudged guilty of contempt, and ordered to pay a fine of five
dollars and to be
Page 194 U. S. 579
taken into custody until he should answer the question. He
petitioned the circuit court for writ of habeas corpus, and from
the judgment remanding him to custody prosecuted an appeal to this
Court. It was held that he was compellable to answer.
In the case at bar, as we have already said, plaintiff in error
did not claim the protection afforded him by the Bankrupt Act. He
made no objection to the use of the testimony which he gave before
the referee, nor does he now urge its use as error. He broadly
claimed, and now claims, exemption from prosecution. For the
reasons we have given, the claim is untenable.
Judgment affirmed.