The Fifth Amendment is not obligatory upon the states or their
judicial establishments, and regulates the procedure of federal
courts only.
Twining v. New Jersey, 211 U. S.
78.
A violation of defendant's rights under a provision in the state
constitution which is identical to one in the federal Constitution
which is only obligatory on the federal courts does not infringe a
federal right.
The word "testimony" more properly refers to oral evidence than
to documentary, and it is reasonable that a distinction should be
made between the two.
The prohibition in § 9 of the Bankruptcy Act of 1898 against
offering testimony given by the bankrupt in accordance with the
provisions of that section as evidence in any criminal proceeding
applies only to the testimony, and not to the schedules referred to
therein.
Rev.Stat. § 860, prohibiting the use of a pleading of a party or
discovery of evidence by judicial proceeding against him in a
criminal proceeding, while in force, was limited by its own terms
to proceedings in the federal courts, and does not apply to one in
the state court.
Evidence showing the results of an expert examination of the
bankrupt's books is not "testimony" within the meaning of § 9 of
the Bankruptcy Act of 1898.
Quaere, and not necessary to determine in this case,
whether the prohibition in § 9 of the Bankruptcy Act against using
testimony of the bankrupt is not limited to criminal proceedings in
the federal courts, and does not apply to such proceedings in the
state courts.
228 Pa.St. 400 affirmed.
The facts, which involve the question whether schedules filed by
the bankrupt are, under the Fifth Amendment to
Page 227 U. S. 593
the federal Constitution and the provisions of the Bankruptcy
Act, admissible in a criminal trial of the bankrupt in the state
court, are stated in the opinion.
Page 227 U. S. 596
MR. JUSTICE PITNEY delivered the opinion of the Court.
There are two writs of error, but a single record. The
plaintiffs in error were jointly indicted in the Court of Quarter
Sessions of Erie County, Pennsylvania, under an Act of May 9, 1889
(P.L. 1889, Act 172, p. 145), "relating to the receiving of
deposits by insolvent bankers, etc., defining the offense, and
providing a punishment
Page 227 U. S. 597
therefor." It appears that they were engaged together in
business as private bankers in the Borough of North East,
Pennsylvania, for a long time prior to February 12, 1908; that, on
that day, they received from the prosecuting witness a deposit of
$1,000; that, on the 15th of February, they closed their banking
house, and on the 17th made an assignment for the benefit of their
creditors; that they were shortly thereafter thrown into
involuntary bankruptcy, and schedules were filed by them in the
bankruptcy proceeding. The receipt of the deposit of February
twelfth was made the basis of the indictment.
Upon the trial, the commonwealth offered in evidence, and the
court admitted, against the objection of the defendants, the
schedules filed by them in the bankruptcy proceeding, and the
testimony of an expert accountant, based upon an examination of
their banking books, which they had turned over to the trustee. The
trial court, and, on successive appeals, the superior court and the
Supreme Court of Pennsylvania (40 Pa.Super.Ct. 157, 163; 228 Pa.
400), overruled the contentions of the plaintiffs in error that
their rights under the Constitution and laws of the United States
were infringed by the admission of the evidence referred to, and so
they bring the case here.
Article V of Amendments to the federal Constitution is invoked,
which provides,
inter alia, "No person . . . shall be
compelled in any criminal case to be a witness against himself."
But, as has been often reiterated, this amendment is not obligatory
upon the governments of the several states or their judicial
establishments, and regulates the procedure of the federal courts
only.
Barron v.
Baltimore, 7 Pet. 243;
Spies v. Illinois,
123 U. S. 131,
123 U. S. 166;
Brown v. New Jersey, 175 U. S. 172;
Barrington v. Missouri, 205 U. S. 483;
Twining v. New Jersey, 211 U. S. 78,
211 U. S.
93.
We are referred to a similar prohibition in Art. I, § 9, of
Page 227 U. S. 598
the Constitution of Pennsylvania, but even if the trial of the
plaintiffs in error proceeded in disregard of this provision, no
federal right was thereby infringed.
The only debatable question is that which is based upon the
provisions of § 7 of the Federal Bankruptcy Act of July 1, 1898
(chap. 541, § 7; 30 Stat. 544, 548), which reads as follows:
"Duties of bankrupts. -- a. The bankrupt shall (1) attend the
first meeting of his creditors, if directed by the court or a judge
thereof to do so, and the hearing upon his application for a
discharge, if filed; (2) comply with all lawful orders of the
court; (3) examine the correctness of all proofs of claims filed
against his estate; (4) execute and deliver such papers as shall be
ordered by the court; (5) execute to his trustee transfers of all
his property in foreign countries; (6) immediately inform his
trustee of any attempt, by his creditors or other persons, to evade
the provisions of this act, coming to his knowledge; (7) in case of
any person having to his knowledge proved a false claim against his
estate, disclose that fact immediately to his trustee; (8) prepare,
make oath to, and file in the court within ten days unless further
time is granted, after the adjudication, if any involuntary
bankrupt, and with the petition, if a voluntary bankrupt, a
schedule of his property, showing the amount and kind of property,
the location thereof, its money value in detail, and a list of his
creditors, showing their residences, if known; if unknown, that
fact to be stated, the amounts due each of them, the consideration
thereof, the security held by them, if any, and a claim for such
exemptions as he may be entitled to, all in triplicate, one copy of
each for the clerk, one for the referee, and one for the trustee,
and (9) when present at the first meeting of his creditors, and at
such other times as the court shall order, submit to an examination
concerning the conducting of his business, the cause of his
bankruptcy, his dealings with his creditors
Page 227 U. S. 599
and other persons, the amount, kind, and whereabouts of his
property, and, in addition, all matters which may affect the
administration and settlement of his estate; but no testimony given
by him shall be offered in evidence against him in any criminal
proceeding:
Provided, however, that he shall not be
required to attend a meeting of his creditors, or at or for an
examination at a place more than one hundred and fifty miles
distant from his home or principal place of business, or to examine
claims except when presented to him, unless ordered by the court,
or a judge thereof, for cause shown, and the bankrupt shall be paid
his actual expenses from the estate when examined or required to
attend at any place other than the city, town, or village of his
residence."
The reliance of the plaintiffs in error, of course, is upon that
part of clause 9 of the section, which declares "but no testimony
given by him shall be offered in evidence against him in any
criminal proceeding." It is insisted that, in accordance with the
spirit of the Fifth Amendment, this should be construed as applying
to the schedule required to be prepared, sworn to, and filed by the
bankrupt under the provisions of the 8th clause. But, as a matter
of mere interpretation, we deem it clear that it is only the
testimony given upon the examination of the bankrupt under clause 9
that is prohibited from being offered in evidence against him in a
criminal proceeding. The schedule referred to in the 8th clause,
and the oath of the bankrupt verifying it, are to be "filed in
court," and therefore are, of course, to be in writing. The word
"testimony" more properly refers to oral evidence. It was
reasonable for Congress to make a distinction between the schedule,
which may presumably be prepared at leisure and scrutinized by the
bankrupt with care before he verifies it, and the testimony that he
is to give when he submits to an examination at a meeting of
creditors or at other times pursuant to the order of the court -- a
proceeding
Page 227 U. S. 600
more or less unfriendly and inquisitorial, as well as summary,
and in which it may be presumed that even an honest bankrupt might,
through confusion or want of caution, be betrayed into making
admissions that he would not deliberately make. Full effect can be
given to the clause, "but no testimony given by him shall be
offered in evidence against him in any criminal proceeding," by
confining it to the testimony given under clause 9, to which the
words in question are immediately subjoined. And we think that
proper interpretation requires their effect to be thus limited.
We are referred to
Johnson v. United States, 163 F. 30,
and
Cohen v. United States, 170 F. 715. But these were
both prosecutions in the federal courts on indictments for
fraudulently concealing property belonging to the bankrupt's
estate, and the decision in each case was rested upon § 860,
Rev.Stat., which declares that
"no pleading of a party, nor any discovery or evidence obtained
from a party or witness by means of a judicial proceeding in this
or any foreign country shall 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, or for the enforcement
of any penalty or forfeiture; provided, that this section shall not
exempt any party or witness from prosecution and punishment for
perjury committed in discovering or testifying as aforesaid."
This section (since repealed by Act of May 7, 1910, c. 216, 36
Stat. 352) was in force at the time of the trial of plaintiffs in
error, but, by its own terms, it is limited to criminal proceedings
"in any court of the United States," and constitutes no limitation
upon the procedure of the state courts.
For the reasons given, it seems to us clear that the plaintiffs
in error were not entitled to have the bankruptcy schedules
excluded from evidence, because those schedules
Page 227 U. S. 601
were not within the description of "testimony" in the clause
quoted from § 7 of the Bankruptcy Act.
And for like reasons, the evidence showing the results of an
expert examination of the books of the bankers was also
admissible.
This conclusion renders it unnecessary for us to consider
whether the prohibition with which we have dealt, that "no
testimony given by him shall be offered in evidence against him in
any criminal proceeding," is not limited to criminal proceedings in
the federal courts, and upon this question we express no
opinion.
Judgments affirmed.