There is a clear distinction between an amnesty for crime
committed and the constitutional protection under the Fifth
Amendment from being compelled to be a witness against oneself.
The obvious purpose of the Act of February 25, 1903, c. 755, 32
Stat. 854, 904, granting to witnesses in investigations of
violations of the Sherman Act immunity against prosecution for
matters testified to, was to obtain evidence that otherwise could
not be obtained; the act was not intended as a gratuity to crime,
and is to be construed, as far as possible, as coterminous with the
privilege of the person concerned.
Evidence given in an investigation under the Sherman Act does
not make a basis under the Act of February 25, 1903, for immunity
of the witness against prosecutions for crimes with which the
matters testified about were only remotely connected.
Granting a separate trial to one of several jointly indicted for
conspiracy is within the discretion of the trial judge, reviewable
only in case of abuse.
Even if there may have been an abuse in some instances of
indicting under § 5440 for conspiracy instead of for the
substantive crime itself, liability for conspiracy is not taken
away by its success, and in a case such as this, there does not
appear to be any abuse.
Evidence showing that a conspiracy had continued before and
after the periods specified in the indictment held
case not inadmissible against a defendant present at the various
times testified to.
192 F. 83 affirmed.
The facts, which involve the extent of immunity granted under
the Act of February 25, 1903, c. 755, 32
Stat. 854, 904, are stated in the opinion.
Page 227 U. S. 139
MR. JUSTICE HOLMES delivered the opinion of the Court.
The petitioner was indicted for frauds on the revenue; and, in
the sixth count, under Rev.Stat. § 5440, for a conspiracy to commit
such frauds by effecting entries of raw sugars at less than their
true weights by means of false written statements as to the same.
Rev.Stat. § 5445. Act of June 10, 1890, c. 407, § 9, 26 Stat. 131,
135. He pleaded in bar that, in 1909 and 1910, answering the
government's subpoena, he had testified and produced documentary
evidence before a federal grand jury investigating alleged breaches
of the Sherman Anti-Trust Act that the testimony and documents
concerned the subject
Page 227 U. S. 140
matter of the present indictment, and that therefore he was
exempted from liability by the Act of February 25, 1903, c. 755, 32
Stat. 854, 904, as amended June 30, 1906, c. 3920, 34 Stat. 798.
There was a replication; issue was joined; a trial was had upon the
plea, in which the court directed a verdict for the government, 175
F. 852; leave was given to plead over; a premature attempt was made
to bring the case before this Court, 217 U.
, and then there was a trial on the merits in
which the petitioner was found guilty on the sixth count. The
circuit court of appeals affirmed the judgment, 192 F. 83.
Whereupon a writ of certiorari was granted by this Court.
The investigation in which the petitioner testified concerned
transactions of the American Sugar Refining Company. See
Pennsylvania Sugar Refining Co. v. American Sugar Refining
166 F. 254. The petitioner was summoned to produce
records of the American Sugar Refining Company and to testify. He
appeared, produced the records, and testified that he was the
person to whom the subpoenas were addressed, secretary of the New
York corporation, and secretary and treasurer of the New Jersey
corporation of the same name. He summed up what the books produced
showed as to the formation of the New York company. He identified
his signature to four checks of the company in a transaction not in
question here -- the Kissel-Segal loan mentioned in United
States v. Kissel, 218 U. S. 601
218 U. S. 608
These checks were not used in the present case. He testified as to
the ownership of the Havemeyer and Elder Refinery in Brooklyn.
Finally, he produced a table showing how many pounds of sugar were
melted each year, from 1887 to 1907, in each refinery, this table,
of course, not purporting to represent the petitioner's personal
knowledge, but being a summary of reports furnished by the
company's different employees, and, the government contends,
volunteered by him.
Page 227 U. S. 141
The Act of February 25, 1903, c. 755, 32 Stat. 904, appropriates
$500,000 for the enforcement of the Interstate Commerce and
"Provided, that no person shall be prosecuted or be 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, in any proceeding, suit, or
prosecution under said acts; Provided further, that no person so
testifying shall be exempt from prosecution or punishment for
perjury committed in so testifying."
(This last proviso was added only from superfluous caution, and
throws no light on the construction. Glickstein v. United
States, 222 U. S. 139
222 U. S.
-144.) By the amendment of June 30, 1906, c. 3920, 34
Stat. 798, immunity under the foregoing and other provisions
"shall extend only to a natural person who, in obedience to a
subpoena, gives testimony under oath, or produces evidence,
documentary or otherwise, under oath."
The petitioner contended that, as soon as he had testified upon
a matter under the Sherman Act, he had an amnesty by the statute
from liability for any and every offense that was connected with
that matter in any degree, or at least every offense towards the
discovery of which his testimony led up, even if it had no actual
effect in bringing the discovery about. At times, the argument
seemed to suggest that any testimony, although not incriminating,
if relevant to the later charge, brought the amnesty into play. In
favor of the broadest construction of the immunity act, it is
argued that, when it was passed, there was an imperious popular
demand that the inside working of the trusts should be
investigated, and that the people and Congress cared so much to
secure the necessary evidence that they were willing that some
guilty persons should escape, as that reward was necessary to the
end. The government, on the other hand, maintains that the statute
should be limited as nearly as may
Page 227 U. S. 142
be by the boundaries of the constitutional privilege of which it
takes the place.
Of course, there is a clear distinction between an amnesty and
the constitutional protection of a party from being compelled in a
criminal case to be a witness against himself. Amendment V. But the
obvious purpose of the statute is to make evidence available and
compulsory that otherwise could not be got. We see no reason for
supposing that the act offered a gratuity to crime. It should be
construed, so far as its words fairly allow the construction, as
coterminous with what otherwise would have been the privilege of
the person concerned. We believe its policy to be the same as that
of the earlier Act of February 11, 1893, c. 83, 27 Stat. 443, which
read: "No person shall be excused from attending and testifying,"
etc. "But no person shall be prosecuted," etc., as now, thus
showing the correlation between constitutional right and immunity
by the form. That statute was passed because an earlier one, in the
language of a late case, "was not coextensive with the
constitutional privilege." American Lithographic Co. v.
Werckmeister, 221 U. S. 603
221 U. S. 611
Act of February 19, 1903, c. 708, § 3. To
illustrate, we think it plain that merely testifying to his own
name, although the fact is relevant to the present indictment as
well as to the previous investigation, was not enough to give the
petitioner the benefit of the act. See
3 Wigmore, Evidence
There is no need to consider exactly how far the parallelism
should be carried. It is to be noticed that the testimony most
relied upon was the summary made from the books of the company by
its servants at the petitioner's direction, and simply handed over
by him; that, apart from the statute, the petitioner could not have
prevented the production of the books or papers of the company,
such as the summary was when made, or refused it if
Page 227 U. S. 143
he had the custody of them, and that the decisions that
established the duty to produce go upon the absence of
constitutional privilege, not upon the ground of statutory immunity
in such a case. Wilson v. United States, 221 U.
, 221 U. S. 377
et seq.; Dreier v. United States, 221 U.
, 221 U. S. 400
Baltimore & Ohio R. Co. v. Interstate Commerce
Commission, 221 U. S. 612
221 U. S. 623
Wheeler v. United States, 226 U.
; Grant v. United States, ante,
227 U. S. 74
this consideration does not stand alone, for the evidence given in
the former proceeding did not concern the present one, and had no
such tendency to incriminate the petitioner as to have afforded a
ground for refusing to give it, even apart from the statute and the
fact that it came from the corporation books. Taking all these
considerations together, we think it plain that the petitioner
could take nothing by his plea.
The evidence did not concern any matter of the present charge.
Not only was the general subject of the former investigation wholly
different, but the specific things testified to had no connection
with the facts now in proof much closer than that all were dealings
of the same sugar company. The frauds on the revenue were
accomplished by a secret introduction of springs into some of the
scales in such a way as to diminish the apparent weight of some
sugar imported from abroad. The table of meltings by the year had
no bearing on the frauds, as it was not confined to the sugar
fraudulently weighed, and it does not appear how the number of
pounds was made up. The mere fact that a part of the sugar embraced
in the table was the sugar falsely weighed did not make the table
evidence concerning the frauds. The same consideration shows that
it did not tend to incriminate the witness. It neither led nor
could have led to a discovery of his crime. So the admission of his
signature to certain checks, although it furnished a possible
standard of the petitioner's handwriting if there had
Page 227 U. S. 144
been any dispute about it, which there was not, in the
circumstances of this case at least, had neither connection nor
criminating effect. When the statute speaks of testimony concerning
a matter, it means concerning it in a substantial way, just as the
constitutional protection is confined to real danger, and does not
extend to remote possibilities out of the ordinary course of law.
Brown v. Walker, 161 U. S. 591
161 U. S. 599
5 Wigmore, Evidence § 2281, p. 238. Other questions
would have to be dealt with before the petitioner could prevail
upon his plea; but, as we consider what we have said sufficient, we
shall discuss it at no greater length. There was no dispute as to
the facts, and a verdict upon it for the government properly was
directed by the court.
The other matters complained of would not have warranted the
issue of the writ of certiorari, and may be dealt with in few
words. The petitioner was denied a separate trial, and this is
alleged as error. But it does not appear that the discretion
confided to the trial judge was abused. United States v.
Ball, 163 U. S. 662
163 U. S. 672
Again, it is said that, if the evidence proved the petitioner
guilty of a conspiracy, it proved him guilty of the substantive
offense. It may be that there has been an abuse of indictment for
conspiracy, as suggested by Judge Holt in United States v.
173 F. 823, 828, but it hardly is made clear to us
that this is an instance. At all events, the liability for
conspiracy is not taken away by its success -- that is, by the
accomplishment of the substantive offense at which the conspiracy
aims. Brown v. Elliott, 225 U. S. 392
Reg. v. Button,
11 Q.B. 929; Rex v. Spragg,
Burr. 993, 999.
An objection is urged to the admission of certain books, called
the pink books, in evidence, they being the books in which were
entered weights given by one set of weighers -- the city weighers,
the weighers not having been called. These weights were the higher
ones, and were introduced as evidence of the discrepancy. They
Page 227 U. S. 145
to have been accepted by the company, were checked by the
company's tallyman, who testified, and if other evidence than that
of the men who made the entries was necessary, it was produced.
2 Wigmore, Evidence §§ 1521, 1530. Another objection
to evidence concerned the admission of testimony that the same
course of conduct was going on long before the date in the
indictment when it is alleged that the defendants conspired. The
indictment, of course, charged a conspiracy not barred by the
statute of limitations, but it was permissible to prove that the
course of fraud was entered on long before and kept up.
Wood v. United
16 Pet. 342, 41 U. S. 360
Standard Oil Co. v. United States, 221
U. S. 176
. The acts and directions of earlier date
tended to show that the same conspiracy was on foot. The petitioner
was there. The time of his becoming a party to it was uncertain.
The longer it had lasted, the greater the probability that he knew
of it, and that his acts that helped it were done with knowledge of
their effect. We think it unnecessary to discuss the suggestion
that the evidence did not warrant leaving the case to the jury, or
to add further to the discussion that the case received below.