John Ballmann v. Vivian Fagin No 240 John Ballmann v. United States No 308 No 240
| Decision Date | 02 January 1906 |
| Docket Number | 308,Nos. 240,s. 240 |
| Parties | JOHN W. BALLMANN, Appt. , v. VIVIAN J. FAGIN, United States Marshal for the Southern District of Ohio. NO 240. JOHN W. BALLMANN, Plff. in Err. , v. UNITED STATES. NO 308. NO 240 |
| Court | U.S. Supreme Court |
Messrs. Lawrence Maxwell, Jr., Thomas F. Shay, and Miller Outcalt for appellant in No. 240.
Messrs. Lawrence Maxwell, Jr., Miller Outcalt, and Thomas F. Shay for plaintiff in error in No. 308.
[Argument of Counsel from pages 186-189 intentionally omitted] Solicitor General Hoyt for appellee.
Solicitor General Hoyt for defendant in error.
[Argument of Counsel from pages 189-192 intentionally omitted] 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 April 7, 1905, Ballmann was served with a subpoena to appear before the grand jury, and to bring with him 'cash book, ledger, letter-press 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 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 anme 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. Re Watts, 190 U. S. 1, 35, 36, 47 L. ed. 933, 944, 23 Sup. Ct. Rep. 718. 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...
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