Archie Burrell v. State of Montana

• Decision Date: 31 May 1904
• Docket Number: No. 218,218
• Citation: 48 L.Ed. 1122,194 U.S. 572,24 S.Ct. 787
• Parties: ARCHIE BURRELL, Plff. in Err. , v. STATE OF MONTANA
• Court: U.S. Supreme Court

194 U.S. 572

24 S.Ct. 787

48 L.Ed. 1122

ARCHIE BURRELL, Plff. in Err.,

v STATE OF MONTANA.

No. 218.

Submitted April 13, 1904.

Decided May 31, 1904.

Mr. E. C. Day for plaintiff in error.

[Argument of Counsel from pages 572-574 intentionally omitted] Mr.James Donovan for defendant in error.

Mr. Justice McKenna delivered the opinion of the court:

Plaintiff in error was convicted upon information filed in the district court of the eighth judicial district of the state of Montana of the crime of obtaining money under false pretenses. The judgment of conviction was affirmed by the supreme court of the state. 27 Mont. 282, 70 Pac. 982.

The false pretenses consisted of a false statement in writing made to the Royal Milling Company, a corporation, concerning his assets and liabilities, whereby he induced the company to sell him goods of great value.

Plaintiff in error testified in his own behalf, and during the cross-examination he was questioned in regard to statements made by him in testimony made before the referee in bankruptcy in his own proceedings. No objection was made.

In view of the examination the trial court instructed the jury as follows:

'The court instructs the jury that the fact that the defendant testified in an insolvency proceeding in obedience to a citation did not deprive him of his right to refuse to answer questions tending to criminate him, if he did answer any such questions, and an admission made by him in such proceeding is voluntary and competent evidence in a criminal prosecution subsequently inaugurated, where he was not in custody or charged with a criminal offense when he made such admission, if he did make any such.'

Plaintiff in error excepted to the instruction as follows: 'For the reason that said instruction invades the province of the jury, in that it directs their attention to the alleged admissions of the defendant, and is a charge upon the effect and weight of the evidence. The defendant excepts to the instruction for the further reason that the same does not correctly state the law, in this: that it appears from the testimony that the defendant had testified upon an examination before a referee in bankruptcy, held pursuant to the provisions of the act of Congress, approved July 1, 1898 [30 Stat. at L. 548, chap. 541, U. S. Comp. Stat. 1901, p. 3424], which said act provides as follows: chapter III., section, etc. 'But no testimony given by him [upon his examination] shall be offered in evidence against him in any criminal proceeding.' And the said instruction is against the law.'

The instruction seems to oppose the provisions of the statute, but the circumstances of the case must be considered. There was no objection made to the introduction of the testimony, and as we understand the instruction, it was but the expression of the value of the testimony. The contention of plaintiff in error must have been in the trial court as it was in the supreme court, and it here: to wit, that § 7 of the bankruptcy act grants more than a mere immunity against the admission in evidence of the testimony given before the referee in bankruptcy,—that it grants him protection from prosecution for any crime growing out of the transaction about which he was examined; and this necessarily to secure to him to full protection of that clause of the Constitution of the United States which provides that 'no person shall be compelled in criminal cases to be a witness against himself.' Upon this broad contention he must now rely. A narrower contention might have been yielded to by the state courts. It certainly should have been submitted to them. The statute does not prohibit the use of testimony against the consent of him who gave it. It prescribes a rule of competency of evidence which may or may not be insisted upon. It does not declare a policy the protection of which cannot be waived. And the time to avail of it is when the testimony is offered. After the testimony is admitted, its probative force cannot be limited. This could not be contended even under the broader provision of the Constitution. A witness who voluntarily testifies cannot resist the effect of the testimony by claiming that he was not compellable to give it.

In the case at bar, the court dealt with testimony which had been admitted without question or objection. We are brought, therefore, to the broad and ultimate...