United States v. Kimball

Decision Date07 March 1902
Citation117 F. 156
PartiesUNITED STATES v. KIMBALL. UNITED STATES v. KIMBALL et al. (two cases). (Nos. 1-3.)
CourtU.S. District Court — Southern District of New York

Henry L. Burnett, U.S. Atty., and Ernest E. Baldwin, Asst. U.S Atty.

Hoadley Lauterbach & Johnson and Edward Lauterbach, for defendant Kimball.

Underwood Van Vorst, Rosen & Hoyt (William M. K. Olcott and Frederick B. Van Vorst, of counsel), for defendant Poor.

Lorenzo Semple, for defendant Rose.

THOMAS District Judge.

The indictment in action No. 1 charges in several counts that Kimball, while president of the Seventh National Bank in the city of New York, to evade the provisions of section 5208 of the Revised Statutes of the United States, resorted to a certain device, pursuant to which he certified and caused to be certified certain checks drawn upon the bank by the firm of Henry Marquand & Co. (consisting of Henry Marquand and the defendant Poor), at times when such company did not have on deposit with the bank an amount of money equal to the amount specified in the checks, in violation of such section, as amended by section 13, Act Cong. July 12, 1882 (1 Supp.Rev.St.p. 357). The indictment in action No. 2 charges a conspiracy between Kimball and Poor to commit an offense against the United States by a violation of such statute, in and by the certification of checks of Marquand & Co., and that pursuant to such conspiracy Poor drew checks at several times stated and Kimball certified the same. The indictment in action No. 3 charges that Kimball, while president, and Rose, while paying teller, of such bank, unlawfully certified checks of Marquand & Co., at several times stated, in violation of such statute; the latter executing the certification under the direction of the former. The defendants moved in the first instance to inspect the minutes of the grand jury, that they might base thereon a motion to quash the indictments. The defendants brought on the second motion at the suggestion of the court, and it has been heard in connection with the first motion. The motions, at the time of submission, were based upon affidavits of the moving parties; but since the matter has been under consideration the stenographic minutes containing the examination of Rose have been added to the record by order of the court. The United States has offered no evidence beyond the affidavit of the United States attorney, stating the mere fact that 17 witnesses were subpoenaed and testified before the grand jury.

In the summer of 1901, the Seventh National Bank, theretofore doing business in the city of New York, failed, and the grand jury undertook an investigation of its previous transactions, with the obvious purpose of discovering whether its affairs had been conducted lawfully. It is inferable that this inquiry was initiated without complaint or knowledge that any given person had committed an offense that aided the failure, and the subpoenas issued to the witnesses, including the defendants, were in the form served upon Kimball. This was the usual subpoena commanding the proposed witness to appear before the grand jury, at a time and place designated, 'to testify all and everything which you may know concerning the matter of the failure of the Seventh National Bank of New York City, on the part of the said United States; and this you are not to omit, under the penalty of two hundred and fifty dollars. ' Kimball complied with this summons, and appeared before the grand jury at the appointed time and on one or two subsequent dates.

From the affidavits of the three defendants and the United States attorney, the facts, so far as ascertainable from them, may be summarized as follows: (1) The defendants, being 3 of 17 witnesses summoned and testifying, knowing that the failure of the Seventh National Bank was under investigation, but not that indictments were contemplated against them, each gave evidence relating to checks drawn in the name of Marquand & Co., by the hand of Poor, upon the bank of which Kimball was president and Rose the paying teller. (2) Each defendant had opportunity to take legal advice,-- Kimball, if not before he began his evidence, at least before he completed it upon a subsequent day or days; Poor between July 25th and 30th, and especially on the 25th day of July, when he appeared at the United States attorney's office, accompanied by his counsel, and asked for an adjournment to meet several lawyers and others respecting the affairs of Marquand & Co.; and Rose before he testified, inasmuch as he announced that he had been advised by counsel. (3) Kimball was advised by the United States attorney that he was at liberty to refuse to answer any question, and that whatever he said would not be used against him elsewhere, to which he replied that he would be glad to have the opportunity of explaining anything which occurred in relation to the matters of the bank, and thereupon gave his evidence, although he states that he believed that a refusal to answer questions might be construed by the grand jurors as evidence that there had been wrongs committed by him, but that, having been compelled to appear, and being in the jury room, he felt constrained and compelled to answer such questions as were asked of him, and that the district attorney discussed with him, before the grand jury, his right to do certain things, some of which were made the subject of the indictments. Poor was not so advised by the United States attorney, but raised no objection to giving his evidence. Rose, upon being asked a question at some stage of the examination, objected to answering the question upon the ground that it might tend to incriminate him, but, upon being advised by the United States attorney that it was his right to refuse to answer questions that tended to incriminate him, but that the question asked did not tend to incriminate him, and that he could be compelled to answer the same, the defendant did answer it, and gave his other evidence without objection, not being able to distinguish between questions whose answers would, and those that would not, incriminate him. This evidence of Rose is modified decidedly by the minutes of his evidence hereafter discussed. (4) All the defendants state that, had they supposed or been advised that statements made by them would or could be considered against them by the grand jury, and were intended to be so used, they would have declined to submit to the examination, or at least to a part thereof. Hence it appears from such affidavits that each of the defendants,-- two of them, Poor and Rose, shown to have had counsel before appearing,-- knowing the occasion and nature of the inquiry and his relation to the checks, gave evidence; that Kimball was advised of his privilege by the United States attorney, and declined to avail himself of it; that Poor was not so advised by him, and that Rose was so advised, and declined to answer one question, but finally answered it, upon being told that the answer could not incriminate him and that he could be compelled to answer; and that certain of the evidence given by each witness (for the present this statement will be left applicable to Rose) was relevant and material to the subject-matter of the indictment. It will further be observed that none of the defendants states that he had not the benefit of counsel before going before the grand jury.

In the course of their argument the defendants evolved these propositions: (1) That an obeyed summons to the defendants to appear before the grand jury, and consequent evidence touching matters thereafter charged in an indictment against them, violated the constitutional provision that no person 'shall be compelled in any criminal case to be a witness against himself,' and that in the case of Rose the compulsion was aggravated by the insistence of the United States attorney that he should answer, after he had objected to a certain question. (2) That merely subpoenaing the defendants before the grand jury, and requesting them to testify, violated their right to choose whether they would give evidence in a proceeding wherein they were charged as defendants; that is, an indictment found by a grand jury is illegal, if the person charged in it attended pursuant to a subpoena, and gave or refused to give evidence touching its subject-matter. (3) That under section 860 of the Revised Statutes their evidence was improperly used against them in finding the indictments.

For convenience the second and third propositions may be first considered. The competency of a defendant, in a criminal case in New York, to testify therein, is now stated in section 393 of the Code of Criminal Procedure:

'The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him.'

The law of the state has removed the disability of a defendant in a criminal case to testify, and permits him to stand mute or to testify as he wills, and protects his choice from any suggestion of the prosecuting party, as well as unfavorable inference by the jury. No right of this nature springs from the constitution. Such a defendant could not, before the statute, be asked to take the witness stand, because, on account of his status, he could not be a witness voluntarily or compulsorily; and the disability now continues, unless of his own motion he elect to remove it. To demand or to request that he shall be sworn is an attempt to choose for him, which constrains his acceptance and coerces him to make public choice in the presence of the jury. This would be misconduct on the part of the prosecution, intended and calculated to harm the defendant, disturb his free choice, and prejudice the jury in the case of declination. This...

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  • Killough v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 29, 1982
    ...376] (1943), for 'those competent and freewilled to do so may give evidence against the whole world, themselves included.' United States v. Kimball, 117 F. 156, 163 (CCSDNY 1902); accord, Miranda, supra, [384 U.S. 436] at 478 [86 S.Ct. 1602 at 1629, 16 L.Ed.2d 694]; Michigan v. Tucker, 417 ......
  • State v. McKenzie, 70
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    • April 18, 1973
    ...462, 472, 271 A.2d 182.The incongruity of even using the word 'waiver' in this context was forcefully put by United States v. Kimball, 117 F. 156, at 163-164 (S.D.N.Y.1902):'(The privilege) means that no person shall be forced to be a witness against himself . . . From this it follows that ......
  • United States v. Gilboy, Crim. No. 12880.
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    • February 6, 1958
    ...163 F. 904, 906; United States v. Brown, D.C.Or.1871, 24 Fed.Cas. page 1273, No. 14,671, 1 Sawy. 531; United States v. Kimball, C.C.S.D. N.Y.1902, 117 F. 156, 160, 162, 163; United States v. Burk, D.C.D.Del.1941, 41 F.Supp. 916, at page 918; Kaplan v. United States, 2 Cir., 1925, 7 F.2d 594......
  • State v. Vinegra
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    ...for "those competent and freewilled to do so may give evidence against the whole world, themselves included." United States v. Kimball, 117 F. 156, 163 (C.C.S.D.N.Y.1902) * * *. (--- U.S. at ----, 97 S.Ct. at 1818 (emphasis The Court held, however, that "(t)he constitutional guarantee is on......
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