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, and Adams 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 case the
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...
