Com. v. Southern Exp. Co.

• Decision Date: 01 October 1914
• Parties: COMMONWEALTH v. SOUTHERN EXPRESS CO.
• Court: Kentucky Court of Appeals

169 S.W. 517

160 Ky. 1

COMMONWEALTH v. SOUTHERN EXPRESS CO.

Court of Appeals of Kentucky.

October 1, 1914

Appeal from Circuit Court, Lincoln County.

The Southern Express Company was indicted for the offense of obstructing justice. From a judgment sustaining a demurrer to the indictment and discharging the defendant, the Commonwealth appeals. Reversed.

James Garnett, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for appellant.

Chas C. Fox, of Danville, for appellee.

HANNAH J.

The appellee, Southern Express Company, was indicted in the Lincoln circuit court, charged with the offense of obstructing justice. The indictment alleges, in substance that, the grand jury of Lincoln county, which was impaneled at the May term, 1913, of the Lincoln circuit court, being about to engage in an investigation of violations of the prohibition against the unlawful sale, shipment, and delivery of intoxicating liquors in said county, the defendant Southern Express Company, knowing that certain of its books and papers contained evidence of the violation of the law in the respects mentioned, committed by itself and others, and knowing that such books and papers would be called for and required by the grand jury in such investigation, caused the removal of such books and papers from the county of Lincoln and state of Kentucky, for the purpose of hindering obstructing, and preventing such investigation by the grand jury, and thereby obstructed justice.

Defendant corporation demurred to the indictment, and the circuit court sustained the demurrer upon the stated ground that the books and papers of defendant corporation, if produced before the grand jury, might result in criminating defendant corporation itself, for which reason the court held that the removal thereof did not constitute the offense of obstructing justice. From the judgment thereupon entered, discharging the defendant, the commonwealth appeals.

It is admitted by the demurrer that the books and papers of the defendant corporation contain evidence of its violation of the law, and that it removed them from the jurisdiction of the court, knowing they would be called for and required by the grand jury.

So the chief inquiry is whether defendant corporation could have been required to produce and permit an inspection of its books and papers by the grand jury, if such books and papers had been permitted to remain within the jurisdiction of the court; and the answer to this inquiry is controlling upon a consideration of the question whether the removal thereof from the jurisdiction of the court constituted an act in obstruction of justice, for the reason that, unless the production thereof could lawfully have been coerced by the grand jury, the removal of such books and papers from the jurisdiction of the court would not be such an act as would subject defendant corporation to a conviction of the charge set out in the indictment. Unless the production of its books and papers could lawfully have been coerced, their removal from the jurisdiction of the court is immaterial.

1. Where the books and papers of an individual citizen contain evidence incriminating him, he cannot be required to exhibit the contents thereof to the grand jury any more than he could be required to incriminate himself by word of mouth; but, in order that he may be entitled to assert the privilege against self-crimination guaranteed to him by section 11 of the Constitution of the commonwealth of Kentucky and by the fifth amendment to the Constitution of the United States, he must appear in person in the court out of which the subp na issued, with the books and papers in his present possession, rendering himself amenable to the authority of the court, and tendering and offering himself and his books and papers for examination and inspection by the court so that the court may determine for itself whether the contents of such books and papers are of a criminating nature. This being done, the Constitution throws around the individual citizen the sheltering guaranty against self-crimination. But the individual citizen may not resolve himself into a court, and himself determine and assert the criminating nature of the contents of books and papers required to be produced. United States v. Collins (D. C.) 146 F. 553; Ballman v. Fagin, 200 U.S. 195, 26 S.Ct. 212, 50 L.Ed. 433; Consol. Ren. Co. v. Vermont, 207 U.S. 541, 28 S.Ct. 178, 52 L.Ed. 327, 12 Ann.Cas. 658. See, also, McGorray v. Sutter, 80 Ohio St. 400, 89 N.E. 10, 24 L.R.A. (N. S.) 165.

2. But the constitutional privilege against self-crimination does not extend to corporations; and had defendant company permitted its books and papers to remain...