Edwin Hale v. William Henkel

• Citation: 201 U.S. 43,26 S.Ct. 370,50 L.Ed. 652
• Decision Date: 12 March 1906
• Docket Number: No. 340,340
• Parties: EDWIN F. HALE, Appt. , v. WILLIAM HENKEL, United States Marshal
• Court: United States Supreme Court

201 U.S. 43

26 S.Ct. 370

50 L.Ed. 652

EDWIN F. HALE, Appt.,

v WILLIAM HENKEL, United States Marshal.

No. 340.

Argued January 4, 5, 1906.

Decided March 12, 1906.

This was an appeal from a final order of the circuit court, made June 18, 1905, dismissing a writ of habeas corpus, and remanding the petitioner, Hale, to the custody of the marshal.

The proceeding originated in a subpoena duces tecum, issued April 28, 1905, commanding Hale to appear before the grand jury at a time and place named, to 'testify and give evidence in a certain action now pending . . . in the circuit court of the United States for the southern district of New York, between the United States of America and the American Tobacco Company and MacAndrews & Forbes Company, on the part of the United States, and that you bring with you and produce at the time and place aforesaid:'

1. All understandings, agreements, arrangements, or contracts, whether evidenced by correspondence, memoranda, formal agreements, or other writings, between MacAndrews & Forbes Company and six other firms and corporations named, from the date of the organization of the said MacAndrews & Forbes Company.

2. All correspondence by letter or telegram between MacAndrews & Forbes Company and six other firms and corporations.

3. All reports made or accounts rendered by these six companies or corporations to the principal company.

4. Any agreements or contracts, or arrangements, however evidenced, between MacAndrews & Forbes Company and the Amsterdam Supply Company or the American Tobacco Company or the Continental Company or the Consolidated Tobacco Company.

5. All letters received by the MacAndrews & Forbes Company since the date of its organization from thirteen other companies named, located in different parts of the United States, and also copies of all correspondence with such companies.

Petitioner appeared before the grand jury in obedience to the subpoena, and, before being sworn, asked to be advised of the nature of the investigation in which he had been summoned; whether under any statute of the United States, and the specific charge, if any had been made, in order that he might learn whether or not the grand jury had any lawful right to make the inquiry, and also that he be furnished with a copy of the complaint, information, or proposed indictment upon which they were acting; that he had been informed that there was no action pending in the circuit court, as stated in the subpoena, and that the grand jury was investigating no specific charge against anyone, and he therefore declined to answer: First, because there was no legal warrant for his examination, and, second, because his answers might tend to incriminate him.

After stating his name, residence, and the fact that he was secretary and treasurer of the MacAndrews & Forbes Company, he declined to answer all other questions in regard to the business of the company, its officers, the location of its office, or its agreement or arrangements with other companies. He was thereupon advised by the assistant district attorney that this was a proceeding under the Sherman act to protect trade and commerce against unlawful restraint and monopolies; that, under the act of 1903, amendatory thereof, no person could be prosecuted or subjected to any penalty or forfeiture on account of any matter or thing concerning which he might testify or produce documentary evidence in any prosecution under said act, and that he thereby offered and assured appellant immunity from punishment. The witness still persisted in his refusal to answer all questions. He also declined to produce the papers and documents called for in the subpoena:

First. Because it would have been a physical impossibility to have gotten them together within the time allowed.

Second. Because he was advised by counsel that he was under no legal obligations to produce anything called for by the subpoena.

Third. Because they might tend to incriminate him.

Whereupon the grand jury reported the matter to the court, and made a presentment that Hale was in contempt, and that the proper proceedings should be taken. Thereupon all the parties appeared before the circuit judge, who directed the witness to answer the questions and produce the papers. Appellant still persisting in his refusal, the circuit judge held him to be in contempt, and committed him to the custody of the marshal until he should answer the questions and produce the papers. A writ of habeas corpus was thereupon sued out, and a hearing had before another judge of the same court, who discharged the writ and remanded the petitioner.

Mr. Justice Brown delivered the opinion of the court:

Two issues are presented by the record in this case, which are so far distinct as to require separate consideration. They depend upon the applicability of different provisions of the Constitution, and, in determining the question of affirmance or reversal, should not be confounded. The first of these involves the immunity of the witness from oral examination; the second, the legality of his action in refusing to produce the documents called for by the subpoena duces tecum.

1. The appellant justifies his action in refusing to answer the Messrs. De Lancey Nicoll, Junius Parker, and John D. Lindsay for appellant.

[Argument of Counsel from pages 47-51 intentionally omitted] Messrs. Henry W. Taft, Felix H. Levy, and Attorney General Moody for appellee.

[Argument of Counsel from pages 51-58 intentionally omitted]

Page 58

Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court.

Two issues are presented by the record in this case, which are so far distinct as to require separate consideration. They depend upon the applicability of different provisions of the Constitutiuon, and, in determining the question of affirmance or reversal, should not be confounded. The first of these involves the immunity of the witness from oral examination; the second, the legality of his action in refusing to produce the documents called for by the subpoena duces tecum.

The appellant justifies his action in refusing to answer the

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questions propounded to him, 1st, upon the ground that there was no specific 'charge' pending before the grand jury against any particular person; 2d, that the answers would tend to criminate him.

The first objection requires a definition of the word 'charge' as used in this connection, which it is not easy to furnish. An accused person is usually charged with crime by a complaint made before a committing magistrate, which has fully performed its office when the party is committed or held to bail, and is quite unnecessary to the finding of an indictment by a grand jury; or by an information of the district attorney, which is of no legal value in prosecutions for felony; or by a presentment, usually made, as in this case, for an offense committed in the presence of the jury; or by an indictment which, as often as not, is drawn after the grand jury has acted upon the testimony. If another kind of charge be contemplated, when and by whom must it be preferred? Must it be in writing, and if so, in what form? Or may it be oral? The suggestion of the witness, that he should be furnished with a copy of such charge, if applicable to him, is applicable to other witnesses summoned before the grand jury. Indeed, it is a novelty in criminal procedure with which we are wholly unacquainted, and one which might involve a betrayal of the secrets of the grand jury room.

Under the ancient English system, criminal prosecutions were instituted at the suit of private prosecutors, to which the King lent his name in the interest of the public peace and good order of society. In such cases the usual practice was to prepare the proposed indictment and lay it before the grand jury for their consideration. There was much propriety in this, as the most valuable function of the grand jury was not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.

We are pointed to no case, however, holding that a grand jury

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cannot proceed without the formality of a written charge. Indeed, the oath administered to the foreman, which has come down to us from the most ancient times, and is found in Shaftesbury's Trial, 8 How. St. Tr. 769, indicates that the grand jury was competent to act solely on its own volition. This oath was that 'you shall diligently inquire and true presentments make of all such matters, articles, and things as shall be given you in charge, as of all other matters, and things as shall come to your own knowledge touching this present service,' etc. This oath has remained substantially unchanged to the present day. There was a difference, too, in the nomenclature of the two cases of accusations by private persons and upon their own knowledge. In the former case their action was embodied in an indictment formally laid before them for their consideration; in the latter case, in the form of a presentment. Says Blackstone in his Commentaries, bk. 4, p. 301:

'A presentment, properly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before them at the suit of the King, as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment, before the party presented can be put to answer it.'

Substantially the same language is used in 1 Chitty, Crim. Law, 162.

In United States v. Hill, 1 Brock. 156, Fed. Cas. No. 15,364, it was indicated by Chief Justice Marshall that a presentment and indictment are to be considered as one act, the second to be considered only as an amendment to the first, and that the usage of this country has been to pass over, unnoticed, presentments on...