In re Moser

• Decision Date: 07 December 1904
• Citation: 101 N.W. 588,138 Mich. 302
• Court: Michigan Supreme Court
• Parties: In re MOSER.

101 N.W. 588

138 Mich. 302

In re MOSER.

Supreme Court of Michigan

December 7, 1904

Certiorari to Circuit Court, Saginaw County; Emmet L. Beach, Judge.

Augustus G. Moser was convicted of contempt, and brings certiorari.Affirmed.

The petitioner was convicted of contempt of court, in refusing to produce before the grand jury, in obedience to a subpoena duces tecum, certain books of account of the Bartlett Illuminating Company.The case is before us for review on certiorari.The defenses now urged are (1) that the entries might tend to criminate the petitioner; (2) that, as the avowed purpose in demanding the books was to obtain evidence against other officers of the Bartlett Illuminating Company compulsory process for their production was in violation of section 26, art. 6, of the Constitution of Michigan, and of the fifth amendment of the Constitution of the United States.

The material findings of the court are: '(1) That on the 9th day of April, and for some days prior, said grand jury were engaged in investigating and inquiring into certain alleged violations of the provisions of section 11,312 of the Compiled Laws of 1897, which said section makes it a felony for certain municipal officers to corruptly accept any gift or gratuity, or any promise to make any gift or to do any act beneficial to such officer, under an agreement or with an understanding that his vote, opinion, or judgment shall be given in any particular manner or upon a particular side of any question which is or may be by law brought before him in his official capacity.(2) That said books and records referred to in said subpoena contain material and necessary evidence to aid said grand jury in making an investigation in determining whether said section of the statute had been violated.(3) That said respondent on said 9th day of April 1901, was the president of said company; was in possession and had full control of the books and records described in said subpoena; that it was within his power and ability, if he so desired, to produce to said grand jury the books and records called for by said subpoena.(4) That said respondent on said 9th day of April appeared before said grand jury and refused to produce the books and records called for by said subpoena, and further refused and declined to produce any one of said books and records to said grand jury as commanded by said subpoena.(5)The respondent's refusal to produce said books to said grand jury for the year 1900, and from January 1 to July 23, 1901, was not for the reason that the entries contained in said books or records would tend to criminate him, and he repeatedly stated to said grand jury that the books and records called for by said subpoena, from January 1, 1900, to July 23, 1901, could in no way tend to criminate him.(6) That said respondent's refusal to produce the books and records called for by said subpoena for the year 1900, and from January 1 to July 23, 1901, was a violation of section 1098 of the Compiled Laws of 1897.(7) That the production of the books of the Bartlett Illuminating Company for the year 1900 and the year 1901, containing the accounts up to the 22d day of July of that year, could in no way tend to criminate the respondent, and that he should produce to this court, before said grand jury, the books and records called for in said subpoena, from January 1, 1900, to July 23, 1901.(8) That the respondent was in no way connected with or interested in said municipal contract; that in fact he was not in this state at the time, nor interested or connected with said company until nearly a year after said matter was closed, and that no bill is pending before said grand jury against him; and that said jury is not considering any matter in which he is personally interested.'

Moore C.J., dissenting.

Under Const.Mich. art. 6, � 32, and Const.U.S. Amend. 5, providing that no witness can be compelled to give testimony which might tend to criminate him or expose him to a criminal prosecution, the witness himself is not the sole judge of whether his testimony will criminate him or not, but he must answer a question put to him unless the answer may actually tend to criminate him.

Weadock & Purcell and James H. Davitt, for petitioner.

James F. O'Keefe, Pros.Atty., for respondent.

GRANT, J.(after stating the facts).

Under the Constitutions of Michigan and of the United States, no witness can be compelled to give testimony which might tend to criminate himself or expose him to a criminal prosecution.The provision in each Constitution is the same.Many cases have arisen in the courts, both of the states and of the United States, under this provision.The only difficulty has been in determining whether the facts of each case bring the party under the protection afforded him by the Constitution.The shield afforded is personal to the witness, designed for his own protection, and not for the protection of others.The witness himself is not the sole judge of whether an answer to a question will tend to criminate himself.The due administration of the law does not permit him to arbitrarily hide behind a fancied or intangible danger to himself.It gives him no right to attempt to avert real danger from others, no matter how closely he may be associated with them.Unless the answer to the question may tend to criminate himself, he must answer whatever the consequence may be to others; otherwise the administration of justice would be seriously obstructed.The position on behalf of the petitioner appears to be that the witness himself is the sole judge, and that, when he says the answer may tend to criminate him, the controversy is closed.The Constitution vests in the witness no such arbitrary power and we are cited to no decision which goes to that extent.

Counsel for petitioner cite and rely upon People v. Forbes,143 N.Y. 219, 38 N.E. 303, andAdams v. Lloyd, 3 Hulst. &Nor. 351.The language of those cases extends the right of the witness to protect himself as far as any which I have examined.In Adams v. Lloyd it is said: 'Where the judge is perfectly certain that the witness is trifling with the authority of the court, and availing himself of the rule of law to keep back the truth, having in reality no ground whatever for claiming the privilege, then the judge is right in insisting on his answering the question.'In People v. Forbes the testimony of the witness and the facts elicited clearly showed that the replies to the questions put might naturally tend to criminate the witness.In that casethe court say: 'The weight of authority seems to be in favor of the rule that the witness may be compelled to answer when he contumaciously refuses, or when it is perfectly clear and plain that he is mistaken, and that the answer cannot possibly injure him, or tend in any degree to subject him to the peril of prosecution.* * * Where it is not so perfectly evident and manifest that the answer called for cannot incriminate, as to preclude all reasonable doubt or fair argument, the privilege must be recognized and protected.'

In Ex parte Senior, 37 Fla. 1, 19 So. 652, 32 L. R. A. 133, it is said: 'It has never been recognized that he[the witness] alone has the right in all cases to decide whether his answer will tend to criminate him.Such a rule would be mischievous and enable unscrupulous witnesses to defeat the ends of justice.'In the recent case of Ex parte Irvine (C. C.)74 F. 954, it is said: 'The true rule is that it is for the judge before whom the question is raised to decide whether an answer to the question put may reasonably have a tendency to criminate the witness, or to furnish proof of a link in the chain of evidence necessary to convict him of a crime.* * * It must appear to the court, from the character of the question, and the other evidence adduced in the case, that there is some tangible and substantial probability that the answer of the witness may help to convict him of crime.'

Considering the importance of the question, I deem it proper though this opinion may be long, to here quote the language of Chief Justice Marshall in Burr's Trial[Fed. Cas. No. 14,692e]'It is a settled maxim of law that no man is bound to criminate himself.This maxim forms one exception to the general rule which declares that every person is compellable to bear testimony in a court of justice.For the witness who considers himself as being within this exception, it is alleged that he is, and from the nature of things must be, the sole judge of the effect of his answer; that he is consequently at liberty to refuse to answer any question if he will say upon his oath, that his answer to that question might criminate himself.When this opinion was first suggested, the court perceived the principle laid down at the bar to be too broad, and therefore required that authorities in support of it might be adduced.Authorities have been adduced, and have been considered.In all of them the court could perceive that an answer to the question propounded might criminate the witness, and he was informed that he was at liberty to refuse an answer.These cases do not appear to the court to support the principle laid down by the counsel for the witness, in the full latitude in which they have stated it.There is no distinction which takes from the court the right to consider and decide whether any direct answer to the particular question propounded could be reasonably supposed to affect the witness.There may be questions, no direct answer to which could in any degree affect him; and there is no case which goes so far as to say that he is not bound to answer such questions.The Case of Goosely[Fed. Cas. No. 15,230], in this court, is perhaps the strongest that has been adduced.But the general...