In re Schnitzer, Motion No. 87.

• Decision Date: 11 December 1940
• Docket Number: Motion No. 87.
• Citation: 295 Mich. 736,295 N.W. 478
• Parties: In re SCHNITZER.
• Court: Michigan Supreme Court

295 Mich. 736

295 N.W. 478

In re SCHNITZER.

Motion No. 87.

Supreme Court of Michigan.

Dec. 11, 1940.

Proceeding in the matter of Louis Schnitzer, wherein a writ of habeas corpus and an ancillary writ of certiorari were issued by the Supreme Court to inquire into the validity of an order adjudging petitioner in contempt for refusing to answer questions put to him in the course of a one-man grand jury proceeding pursuant to Comp.Laws 1929, § 17217, for investigation into gambling and matters in connection therewith.

Writs dismissed.

Argued before the Entire Bench.

P. J. M. Hally, of Detroit, for petitioner.

Chester P. O'Hara, Wendell Brown, William D. Brusstar, and Guy W. Jensen, all of Detroit (Wendell Brown, of Detroit, of counsel), amici curiae for respondent.

BUTZEL, Justice.

We issued a writ of habeas corpus and an ancillary writ of certiorari to inquire into the validity of an order adjudging petitioner in contempt for refusing to answer questions put to him in the course of a one-man grand jury proceeding pursuant to 3 Comp.Laws 1929, § 17217 (§ 28.943 Stat.Ann.) ‘for investigation into gambling and matters in connection therewith.’ The question for our determination is whether his silence was ‘contumacious or privileged.’ Cardozo, Ch. J., in Re Doyle, 257 N.Y. 244, 177 N.E. 489, 490, 87 A.L.R. 418.

Petitioner was sworn as a witness and the following question was put to him: ‘Did you ever pay Hovey Cox any money?’

In declining to answer the petitioner stated: ‘Your Honor, I stand on my constitutional rights, and refuse to answer the question, because it might incriminate me in the State and Federal courts.’

In accordance with 3 Comp.Laws 1929, § 17220 (§ 28.946 Stat.Ann.) he was granted immunity from prosecution for any offense concerning which answers to the following questions might tend to incriminate him:

‘Question 1: Did you at any time during the last six (6) years pay any money to Hovey Cox for protection in the operation of a handbook at 21 Charlotte Street, Detriot, Michigan?

‘Question 2: Did you pay to any one connected with the Detroit Police Department or any law enforcing agency in the City of Detroit and County of Wayne any money within the last six (6) years for protection in the operation of a handbook at 21 Charlotte Street, Detroit, Michigan?

‘Question 3: Did you pay any one any money within the last six (6) years for protection in the operation of a handbook at 21 Charlotte Street, Detroit, Michigan?’

In the proceeding below, petitioner claimed that the possible federal incrimination was ‘a matter of tax;’ in his brief he states that the questions, if answered, ‘might and probably would constitute links in the chain of evidence liable to cause and tending to cause petitioner's indictment by the said Federal grand jury then sitting in Detroit, if petitioner had failed to return (or had falsified his return) under the Federal Income Tax Statutes.’

Article II, § 16, of the Constitution of 1908 of the State of Michigan, provides: ‘No person shall be compelled in any criminal case to be a witness against himself * * *.’

We discussed the entire problem of the scope of the privilege in the recent case of In re Watson, 293 Mich. 263, 291 N.W. 652, 661, although there was some dissent because the witness was under indictment at the time he was called to testify. We held that a witness is not required to give answers ‘that will lead straight to federal prosecution.’ The witness will be protected by his privilege if there is a ‘substantial and imminent’ dangerof incrimination under federal law. The witness himself is not the sole arbiter of the incriminating tendency of the testimony he is asked to supply. In re Moser, 138 Mich. 302, 101 N.W. 588,5 Ann.Cas. 31;In re Mark, 146 Mich. 714, 110 N.W. 61;People ex rel. Moll v. Danziger, 238 Mich. 39, 213 N.W. 448, 52 A.L.R. 136;In re Allison, 156 Mich. 34, 120 N.W. 19;Joslin v. Noret, 224 Mich. 240, 194 N.W. 983;In re Bommarito, 270 Mich. 455, 259 N.W. 310. ‘It belongs to the court to consider and to decide whether any direct answer to it can implicate the witness' (Marshall, Ch. J., in United States v. Burr, 25 Fed.Cas. pages 38, 40, No. 14,692e, 1 Burr's Trial, 244), although the conclusion of the witness that such tendency is present should be given due weight in accordance with our expressed policy of giving the constitutional privilege a liberal construction. Joslin v. Noret, supra; People ex rel. Moll v. Danziger, 238 Mich. 39, 213 N.W. 448, 52 A.L.R. 136. If a direct answer to the question propounded may incriminate, the privilege of silence must be accorded. But the liberality of construction to be accorded is not to be extravagantly extended so as to obstruct the administration of justice when an answer will not jeopardize. Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198. The Constitution does not permit the witness ‘to arbitrarily hide behind a fancied or intangible danger’. In re Moser, supra [138 Mich. 302, 101 N.W. 590,5 Ann.Cas. 31]. The tendency to incriminate must be a reasonable one; an answer may not be withheld because it might possibly under some conceivable circumstances form part of a crime. Wigmore on Evidence, 3d Ed., § 2260. Accordingly, the privilege must not be recalcitrantly asserted too soon. Inquiries that are merely preliminary and by themselves have no flavor of criminality must be answered until there becomes a reasonable basis for fear. In re Bommarito, supra; O'Connell v. United States, 2 Cir., 40 F.2d 201;United States v. Flegenheimer, 2 Cir., 82 F.2d 751; Mason v. United States, supra. In Ex parte Irvine, C.C., 74 F. 954, 960, Judge Taft wrote: ‘It...