Where a witness is subpoenaed to produce a cash book showing
transactions with certain specified persons, a charge of contempt
in failing to produce a cash book must be confined to a failure to
produce one showing transactions with such persons.
The fact that the witness has denied the existence of a cash
book showing transactions with certain specified persons does not
debar him, when ordered in general terms to produce his cash book,
from pleading his privilege to refuse to testify because it might
incriminate him. A person against whom criminal proceedings are
pending is no more bound to produce books of account than to give
testimony to the facts which they disclose.
The facts are stated in the opinion.
Page 200 U. S. 192
MR. JUSTICE HOLMES delivered the opinion 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 commitment was void.
The case, so far as material to our decision, is as follows:
on
Page 200 U. S. 193
April 7, 1905, Ballmann was served with a subpoena to appear
before the grand jury, and to bring with him
"cash book, ledger, letterpress copy book, and all sheets
showing transactions under the name of A. Smith and A. Johnson
during the months of December, 1904, and January and February,
1905."
He appeared before the grand jury, and on the same day the grand
jury reported his failure to produce 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 business. 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 questions:
"(a) state what, on account No. 140, sheet No. 1, on this big
ledger now in use in your business, 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 evidence,
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, Ballman 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
referred to in the order of the court entered on April 8, 1905, or
any book showing transactions 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 Common Pleas
of Hamilton County, being case No. 126,824, and I state that there
are many other actions of the same kind pending
Page 200 U. S. 194
against me."
The petition referred to charged Ballman and others with
conducting 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 imprisoned in accordance with the
same. Afterwards a bill of exceptions was allowed, which set forth
the proceedings of April 8. It 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 Ballmann'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 in 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 commitment was upon the charge and the order of
April 8, not upon the order entered as of April 7. Upon that
assumption, it 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.
In re Watts, 190 U. S.
1,
190 U. S. 35-36.
But we need not stop there. Suppose that Ballmann had in his
possession a book which he was privileged from producing, and which
he wished not to produce. Suppose, also, that he were summoned as
he was in this case, and that the book did not show the
dealings
Page 200 U. S. 195
described -- he could not be criticised very severely for
avoiding, if possible, the discrediting claim of privilege, by an
answer literally exact. If, then, he should be asked in general
terms to produce 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' 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 the case which we have supposed in 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 investigation, 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
disappeared. The book very possibly may have disclosed dealings
with the person or persons 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 abettor of
the guilty man. If he was, he was guilty of a misdemeanor under
Rev.Stat. ยง 5209, and no more bound to produce the book than to
give testimony to the facts which it disclosed.
Boyd v. United
States, 116 U. S. 616;
Counselman v. Hitchcock, 142 U. S. 547.
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 sitting. According to
United
States v. Saline Bank, 1 Pet. 100, he was
exonerated from disclosures which would have exposed him to the
penalties of the state law.
See Jack v. Kansas,
199 U. S. 372. One
way or the other, we are of opinion
Page 200 U. S. 196
that Ballmann could not be required 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
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 control. His
denial was limited explicitly, and with on 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 privilege is that a cash book existed, that Ballmann knew
it, and that he beleived that, if produced, it would criminate him
in one of the two ways which we have explained. Nothing more need
be said about the questions as distinguished from the production of
the book.
See Counselman v. Hitchcock, 142 U.
S. 547.
We are aware that the courts below came to their conclusions
upon the assumption that Ballmann denied generally the possession
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 according 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.