United States v. Barry

Citation29 F.2d 817
Decision Date26 November 1928
Docket NumberNo. 3856.,3856.
PartiesUNITED STATES ex rel. CUNNINGHAM v. BARRY, Sergeant at Arms of United States Senate, et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

J. Elwood Dukes, Otto Kraus, Jr., Benjamin M. Golder, and Ruby R. Vale, all of Philadelphia, Pa., for appellant.

Howard Benton Lewis, of Philadelphia, Pa. (George W. Wickersham, of New York City, of counsel), for appellees.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

On May 16, 1926, the Senate of the United States, by Resolution 195, created a committee and provided: "Said committee is hereby authorized and instructed immediately to investigate what moneys, emoluments, rewards or things of value, including agreements or understandings of support for appointment or election to office have been promised, contributed, made or expended, or shall hereafter be promised, contributed, expended or made by any person, firm, corporation, or committee, organization or association, to influence the nomination of any person as a candidate of any political party or organization for membership in the United States Senate, or to contribute to or promote the election of any person as a member of the United States Senate at the general election to be held in November, 1926. Said committee shall report the names of the persons, firms, or corporations, or committees, organizations, or associations that have made or shall hereafter make such promises, subscriptions, advancements, or payments and the amount by them severally contributed or promised as aforesaid, including the method of expenditure of said sums or the method of performance of said agreements, together with all facts in relation thereto."

The resolution further provided: "Every person who, having been summoned as witness by authority of said committee, * * * who having appeared refuses to answer any question pertinent to the investigation heretofore authorized, shall be held to the penalties provided by section 102 of the Revised Statutes of the United States." Such section provided: "Every person who having been summoned as a witness by the authority of either house of Congress, to give testimony or to produce papers upon any matter under inquiry before either house, or any committee of either house of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than one thousand dollars nor less than one hundred dollars, and imprisonment in a common jail for not less than one month nor more than twelve months." 2 USCA § 192.

In response to a subpœna, Thomas W. Cunningham appeared before the committee, was sworn, and testified as follows:

"Q. With what political organization were you connected during the recent primary in Pennsylvania — the last primary? A. The Republican organization of Philadelphia county.

"Q. Who was the chairman of that organization? A. Thomas F. Watson.

"Q. And what candidate for the Senate was that organization supporting? A. Congressman Vare — W. S. Vare.

"Q. Did you collect any money for use in that campaign? A. I did not.

"Q. Was any money given to you for use in that campaign? A. Not one cent.

"Q. I mean to include in money, of course — checks or drafts or anything — A. No checks, no drafts, or anything.

"Q. That you got money on? A. No, sir.

"Q. Did you handle any money in that campaign? A. I did not.

"Q. Did you deliver any money to any person? A. I did.

"Q. That is handling money, Mr. Cunningham. A. I did not catch your way of saying that.

"Q. Very well. To whom did you give any money? A. I handed money to Thomas F. Watson, $25,000, on the 10th day of April, 1926.

"Q. Where did you get that money? A. I got that money out of my own private funds.

"Q. Your own private moneys? A. Yes, sir; my own money; my own money.

"Q. How long had it been your own money?"

At this point the attorney of Cunningham, who had previously been directed by the chairman that "it would be entirely proper for you to address yourself to the chair and state your objection, the same as you would to a court," made objection, which, as pertinent to the question here involved, was: "I have further advised Mr. Cunningham that he need not disclose to this committee from what part of his personal fortune he paid the money to Mr. Watson that he did pay during this last campaign in Pennsylvania." The examination then proceeded:

"Q. How long had it been your own money? A. I refuse to answer that question, Senator, as a personal question. It is my own private business.

"Q. Where did you get this $25,000 you say you gave to Mr. Watson? A. I refuse to answer that question. I think that is personal.

"Q. Where were you keeping this $25,000 before you gave it to Mr. Watson? A. That is another personal question, Senator. I refuse to answer it.

"Q. Did you give this money to Mr. Watson in cash or by check? A. I gave it to him as cash.

"Q. Where were you when you gave it to him? A. I took it down to his headquarters at the Walton Hotel on the 10th day of April.

"Q. Did you have it in your pocket when you gave it to him — before you gave it to him? A. Yes, sir.

"Q. Where did you get it from to put in your pocket? A. That is a personal question, and I decline to answer it.

"Q. How long had you had this money in your possession? A. That is another personal question, and I decline to answer it. It was my own money, and I do not think I should tell the public where I kept it and how I got, or anything else about it.

"Q. How long have you been clerk of the quarter sessions court? A. Twenty-one years the 1st of January, 1926.

"Q. What is the salary of that position? A. $8,000 a year.

"Q. Was this money which you refer to as the $25,000 that you gave to Mr. Watson savings from your salary? A. That is another personal question. I cannot answer that.

"Q. Unfortunately, a good many questions are personal. A. Yes; I think a man's own money is one of his own personal privileges, and he is not supposed to tell how he got it or how he saved it. I think that is a rather unfair question to ask me; how I got the money, how I saved it, and what I done with it.

"Q. I dare say. Is there anything wrong, or wicked, or crooked about the way you got this money, so that it will embarrass you to answer the question or will subject you to criminal prosecution?

"Mr. Golder: I think that is an unfair question, Senator, and I advise Mr. Cunningham to disregard it.

"Q. If you were to answer the questions I have asked you with regard to the sources from which and the way in which this money came to you, would it tend to subject you to criminal prosecution or public contempt or obloquy?

"Mr. Golder: Senator Reed, I thing that question is objectionable in form and the way in which it is put, and I advise Mr. Cunningham not to consider it, or not to answer it.

"Q. Do you refuse to answer, Mr. Cunningham? A. Yes, I refuse to answer. * * *

"Q. Did you give any other money than the $25,000 to anybody during this campaign? A. Yes; on the 13th of April I gave Mr. Watson $25,000 more.

"Q. So that you gave Mr. Watson a total of $50,000? A. $50,000, of my own money.

"Q. Where did you get the second $25,000 from? A. I refuse to answer that question, Senator.

"Q. You refuse to tell the committee anything about where you received this money from? A. Yes; I do.

"Q. The sources from which the money was received? A. Yes.

"Q. How long had the money been in your possession? You refuse to tell that to the committee? A. I certainly do, because I think that is a personal, private question.

"Q. How long had you been saving up or accumulating this $50,000? A. I do not like to object to your questions, Senator, because I thing a man's own money — why I don't want to make it public to the press, to the newspapers in Philadelphia, about my private affairs, how I got this money or how I saved it.

"Q. Have you inherited any considerable sums of money? A. Never inherited a dollar in my life.

"Q. Have you been speculating in stocks or bonds or upon the board, so that you accumulated the money in that way?

"Mr. Golder: I object to that question and advise Mr. Cunningham that he need not answer.

"Q. What does the witness say? A. I refuse to answer.

"Q. Have you turned in on your tax returns any $50,000 for taxation purposes?

"Mr. Golder: I object to that question, Senator, and advise the witness that he need not answer.

"A. I refuse to answer.

"Q. Have you paid to the state of Pennsylvania, the county in which you live, or the city in which you live, any taxes upon this $50,000?

"Mr. Golder: I object to that question, Senator, and advise the witness that he need not answer. As a matter of fact, there is no taxation in Pennsylvania on any such amount.

"A. I refuse to answer, Senator.

"Q. Have you returned to the federal government this $50,000 in any form?

"Mr. Golder: I object to that question, Senator, and advise the witness he need not answer.

"A. I refuse to answer.

"Q. Did you collect any money from persons employed either by the city of Philadelphia or by the state of Pennsylvania? A. Not one dollar.

"Q. Were any moneys paid to you by any of these persons I have just referred to? A. No, sir.

"Q. Do you know of any collection of money from state employees for political purposes? A. I do not, Senator. * * *

"Q. How long have you known Congressman Vare? A. Ever since I have been a boy — 35 or 40 years, I guess.

"Q. Were you in any way connected with his campaign committee, the committee which was conducting his campaign, in the last primary? A. Only in one way; I was for him after he concluded to be a candidate for United States Senator.

"Q. Did you ever talk with him? A. I talked with him on several occasions about it.

"Q. With him during the campaign? A. No, sir. This was prior to the campaign, before he came out...

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4 cases
  • Wyman v. Uphaus
    • United States
    • New Hampshire Supreme Court
    • March 27, 1957
    ...guests which is not shown to be at hand. See United States ex rel. Cunningham v. Mathues, 3 Cir., 33 F.2d 261; United States ex rel. Cunningham v. Barry, 3 Cir., 29 F.2d 817; Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447, 452. See also, Watkins v. United States, 98 U.S.App.D.C. ......
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    • United States Appellate Court of Illinois
    • May 16, 2001
    ...725 ILCS 5/109-3(d) (West 1998). See generally U.S. ex ret. Cunningham v. Barry, 25 F.2d 733 (E.D.Pa.1928), rev'd on other grounds, 29 F.2d 817 (3rd Cir.1928), rev'd on other grounds, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867 (1929). A trial court should look at several factors in exercising......
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    ... Page 150 ... 260 F.3d 150 (2nd Cir. 2001) ... UNITED STATES OF AMERICA, APPELLEE, ... MICHAEL DESENA, AKA RICHIE BIGFOOT, KEVIN KIERNAN, AKA SIDEWAYS, ... ...
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    • September 18, 1953
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