In re Grant
| Citation | 198 F. 708 |
| Parties | In re GRANT. |
| Decision Date | 02 August 1912 |
| Court | United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York |
William A. Keener and Dallas Flannagan, for Walter B. Grant.
Henry A. Wise, U.S. Dist. Atty. (Robert Stephenson, of counsel) for the United States.
In Wilson v. U.S., 221 U.S. 361, 31 Sup.Ct. 538, 55 L.Ed. 771, Wilson originally had custody of the corporate records as president; but before the second presentment of the grand jury the directors had demanded them of him, and he had refused to deliver them. Therefore the first subpoena went before the demand, the second after, but the court did not distinguish. Now with the first I have here no concern because, while Wilson did not maintain any possession against the corporation, his custody was the corporation's, and the only question was whether he could protect himself from self-incrimination through that fact. That too was Dreier's Case, 221 U.S. 394, 31 Sup.Ct. 550, 55 L.Ed 784, which was decided at the same time as Wilson's. However, after Wilson assumed personal possession of the books, a different question arose. The court might have said that his possession would be respected as privileged, whether as against the corporation it was lawful or not, and that until the corporation had got back the books from Wilson's wrongful possession, no writ should go. That would have been to deny the privilege to the corporation only, but to allow it to the individual no matter what was the original character of the books. Of course, such a result would have been most undesirable in practice, and yet I think that it would necessarily be the result if the papers had not been public in character. For instance, suppose that A., knowing that B. has papers which would incriminate him, gets wrongful possession of them from B., whom they do not incriminate. If B. is content, and leaves A. in possession, I do not understand that it would be any answer whatever to A. to say: 'You cannot keep these back, because you came by them wrongfully, or at least you have no right to them now. ' All the law considers is whether A. has got possession in fact, and whether the documents actually will tend to incriminate him. To get them in evidence the law would have to force him to bring them out of a possession which is good enough against any one but B. Certainly, I can find nothing in the books which suggests such a distinction, and it contradicts the whole history of the matter. For the privilege runs along side by side with the power to compel production, and that power depends only upon serving the actual possessor. There are cases to be sure where one having custody is not required to produce, but it is only because his custody is so subordinate as not to justify his meddling with documents even to bring them to court. Certainly, a full possessor of the documents is always subject to subpoena, whether his possession is lawful or unlawful, and regardless of ownership.
Now the Supreme Court paid no attention whatever to this distinction, for they put the decision upon the quasi public character of the record when it was originally made, which, as I read it, subjected it as a document to production in any one's hands, whether it hurt him or not to discover it. That certainly is the burden of Mr. Justice Hughes' opinion, and, for the reasons I have given, I think it is the logic of the decision. If so, the question of legal title does not matter; indeed, this case shows how little it should. For the respondent concedes that Burlingame would have had to produce these books during the years 1908 and 1909, merely because he had no legal title, though he owned all the stock; but he insists that the passage of title makes the whole difference. Surely that is very dry straw.
However the referee made a finding on the question of title, and the parties seem to think that my finding may affect the scope of an appeal, though it really is only a matter of legal conclusion from undisputed evidence. The respondent relies upon Burlingame's assumption of ownership when he delivered the books to Granger for storage, coupled with his previous...
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...340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951); United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); In re Grant, 198 F. 708 (S.D.N.Y.1912), aff'd 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423 For these reasons, the order compelling enforcement of the summons is Reversed. *......
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