In re Parte

• Decision Date: 29 April 1879
• Citation: 7 Mo.App. 484
• Parties: EX PARTE E. H. BROWN.
• Court: Missouri Court of Appeals

7 Mo.App. 484

EX PARTE E. H. BROWN.

St. Louis Court of Appeals, Missouri.

Apr. 29, 1879.

1. Telegraphic messages, or their contents, are not exempt from the process of the court.

2. The manager of a local telegraph office, when properly served with process, cannot refuse to produce dispatches called for, on the ground that to do so would be in violation of his duty to the company; and the court does not exceed its jurisdiction in committing the witness for a contempt in refusing to obey the subpœna.

3. A call, in a subpœna issued by the grand jury for any and all messages passed between certain named parties during the last six months, is sufficiently certain without reference to the subject-matter of the dispatches.

4. The statute having reference to the punishment of any officer or servant of a telegraph company for the disclosure of the contents of any dispatch does not apply to a case where the dispatches are produced in answer to legal process.

Per LEWIS, P. J., dissenting:

1. A subpœna duces tecum must give such a description of the paper to be produced as will serve to identify it as the particular paper called for.

2. A call for “any and all telegraphic dispatches” which have passed between certain named parties, or “which may have been sent or received by or between any or all” of the parties named, “within the last six months,” does not sufficiently describe the papers, and should not be enforced.

4. A subpœna which calls for a considerable number of papers, for the manifest purpose of ascertaining whether any of them may be found to be material to the matters under judicial investigation, is a search; and if calculated to compel the production of private papers not material, is unreasonable, within the meaning of the constitutional inhibition against “unreasonable searches and seizures.”

PETITION for habeas corpus.

Petitioner remanded.

E. T. ALLEN and J. G. LODGE, for petitioner.

L. B. BEACH and J. N. HARRIS, contra.

HAYDEN, J., delivered the opinion of the court.

The contention on the part of the petitioner is that it affirmatively appears on the face of the papers that the Criminal Court, by which the petitioner was committed for contempt, exceeded its jurisdiction in committing for the supposed offence. The only contempt, it appears, was the petitioner's refusal to search for and produce certain telegraphic dispatches alleged to be in the office of the Western Union Telegraph Company in the city of St. Louis, of which company the petitioner is manager in that city, in obedience to a subpœna duces tecum issued by the Criminal Court at the instance of the grand jury for the city of St. Louis. This subpœna commands the petitioner to appear before the grand jury, and there testify in a matter pending before them, and there to produce “any and all telegraphic dispatches or messages, or copies of the same, now in the office of the Western Union Telegraph Company, of which you are manager, and which dispatches and messages are now in your possession and under your control,” etc. Here various persons are named as persons between whom dispatches passed, thus: “Between Dr. J. C. Nidelet and A. B. Wakefield, and William Ladd and J. C. Nidelet,” etc., and the subpœna, after thus naming the persons, continues, “and any and all telegrams * * * or copies or originals that may be in your possession, * * * which may have been sent or received by or between any or all of the above-mentioned parties within the last six months,” etc. In obedience to the writ, the petitioner appeared and testified before the grand jury; but, for reasons noticed below, declared, in answer to questions put, that he refused to examine the files of the company in the office of which he was manager, for the dispatches or copies. It appeared that these inquiries were made with a view of finding indictments against persons other than the petitioner, for offences committed within the proper jurisdiction. The petitioner, being admonished in open court, and still refusing, was committed as above stated. On the part of the petitioner the attempt is made to put his case on the broadest grounds, and the general questions involved will therefore be considered at first without reference to authorities.

It is evident that there is no foundation for the position of the petitioner as to the exemption of these messages in any natural right, even if he is considered here as representing the senders and receivers of these telegrams, as well as his own company. Whatever may be said as to a man's thoughts, where, by communication on his part, those thoughts pass into the region of action, it becomes a mere matter of political regulation how far the State will go in compelling evidence of that action. The very provision--perhaps universal in the constitutions of our States--against unreasonable searches and seizures, and general and indefinite warrants, shows what primordial rights the individual has been willing to surrender to the State, even where the privacy of home has been invaded.

The people, in their fundamental law, expressly provide that even this sanctity shall not remain inviolate against the hand of criminal justice. This provision of our Constitution, however (Const. Mo. 1875, Bill of Rights, art. 2, sect. 11), has little bearing upon the present question, except by way of argument and illustration. The general warrants of England and the writs of assistance of this country involved questions of a different nature from those relating to the social acts of the accused parties. Apart from the general nature of the warrants, which was the great evil and the decisive ground of illegality,--a truth which is perpetuated in the language of the constitutional provision,--the point was the indiscriminate seizure of all papers which the accused preserved in the privacy of his home, and the illegality of compelling, by force, communication of the contents of those papers; thereby constraining the person, so far as the papers availed against him at all, to be his own accuser.

The difference is too obvious to be dwelt upon where the communication is the act of the person himself. It is said, indeed, that the communication by telegraph is not voluntary, as it is made, not because the person desires it, but because he must, in order to so communicate, put the operator in possession of the facts. Cooley's Const. Lim. ^*307, note 1. But that the act of the person in thus communicating is, in the legal sense, a voluntary act, is apparent. The will of another does not, as it did in the case of Wilkes ( Wilkes v. Wood, Lofft's Rep. 1), disclose the contents of the papers. There is precisely the same voluntariness in the act of the sender of a telegram, however much he may dislike sending the message, that there is in the act of the principal who, driven by necessity, utters in presence of his agent secrets the disclosure of which may ruin the principal's business. In such a case the principal does not receive protection against disclosure by the agent, on the ground that the act of communicating was against the principal's will. Whether made in writing or orally, the act of communicating, as such, is an act of the person; and a man's acts are evidence against him.

The act of sending and that of receiving thus subjecting the persons to the ordinary consequence of having their acts used as evidence against them, why should there be an exception in case of communication by telegraph? It is not claimed that the relation of the parties or the subject-matter of the messages forms any ground of exception similar to that existing in case of husband and wife, or attorney and client.

The question is merely of the production of the dispatches as such. If the parties to them or their subject-matter afford legal grounds of objection to the admission of their contents in evidence under established rules, such objections can be made when the telegrams are produced.

Here the question is of the mere production, and the contention is that that production cannot be compelled. To their production as telegrams there can be no objection on the ground of parties or subject-matter. A ground taken, however, in argument is that the sender and receiver desire their messages to be kept secret. But even this is an assumption. Where, as here, we are bound to believe that it is necessary for the purposes of criminal justice that the best evidence should be produced,--and the ability of courts of law to protect life and property must largely depend on the production of the best evidence,--it ought rather to be assumed, as the telegraph company undertakes to retain custody of the originals long after the transmission, that there could be no objection to their production for lawful purposes. It is in fact, so far as we can know, the company who resists production, not the parties to the dispatches.

But even if the assumption is allowable, in such a case as the present, that sender and receiver object to the production, what does this objection amount to when tested by legal principles? Communications regarded by the parties as sacred--those from father to son, from brother to sister, from partner to partner, the closest secrets of the family or the firm,--the law ruthlessly lays bare. On none of these grounds is the position tenable. The argument bases itself on the mere method of communication.

It is, then, in the physical means that we must find reasons for the conclusion that a new rule must be adopted exempting telegrams in a company's hands from a well-settled course of practiee as to the writ of subpœna duces tecum.

The argument at this point centres on an assumed analogy between communication by government post and by telegraph. It is difficult to discern either physical or legal basis for this argument. The sender by post does not select a method by which he communicates the contents of his package even to the officers of the government, much less to a mere private person or company....