Johnson v. United States

• Decision Date: 02 July 1908
• Docket Number: 744.
• Citation: 163 F. 30
• Parties: JOHNSON v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

163 F. 30

JOHNSON v. UNITED STATES.

No. 744.

United States Court of Appeals, First Circuit.

July 2, 1908

William H. Garland, Asst. U.S. Atty. (Asa P. French, U.S. Atty., on the brief).

Harvey H. Pratt, for plaintiff in error.

Before HOLMES, Circuit Justice, and COLT and PUTNAM, Circuit Judges.

HOLMES Circuit Justice.

The plaintiff in error, hereafter called the defendant, was indicted for concealing from the trustee of his estate in bankruptcy property belonging to the estate. He was convicted and sentenced, and the case is here on exceptions to the admission of evidence and to other rulings of the court. It is objected generally that most of the exceptions were not taken in proper form, as required by Rule 11 (150 F. xxvii 79 C.C.A. xxvii) and otherwise. The objection might be serious with regard to most of them if we saw more merit in them than we do; but we do not need to consider it except in a single case, and in that we think that it should not prevail.

The Government, after putting in the creditors' petition filed against the defendant, the order appointing a receiver notice to the bankrupt, the adjudication, the appointment of the trustee, the order of reference and the list of debts offered the schedules of assets and liabilities filed by the bankrupt in the District Court. The defendant objected, the objection was overruled, the schedules were admitted, and the defendant excepted. It is said that the grounds of the objection should have been stated, but we are of opinion that the only possible ground was sufficiently obvious to entitle the defendant in fairness to have it considered by us upon its merits.

The ground, of course, was Rev. St. Sec. 860 (U.S. Comp. St. 1901, p. 661):

'No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture: Provided, that this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.'

The Government argues that the schedules are not pleadings, discovery or evidence, and that therefore the section does not apply; but we are not satisfied that the fagot can be taken to pieces and broken stick by stick in this manner so easily. We quite agree that vague arguments as to the spirit of a constitution or statute have little worth.

We recognize that courts have been disinclined to extend statutes modifying the common law beyond the direct operation of the words used, and that at times this disinclination has been carried very far. But it seems to us that there may be statutes that need a different treatment. A statute may indicate or require as its justification a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind. The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.

This section of the Revised Statutes goes beyond and outside of the Fifth Amendment. It applies, even to a sworn bill or answer in chancery, what is said to be the rule of common law, that pleadings are not evidence against the party concerned. Langd. Eq. Pl. Sec. 33; Boileau v. Rutlin, 2 Exch. 665. It makes this a general provision, and its object seems to us clear. We think that object was to prevent the required steps of the written procedure in court preliminary to trial from being used against the party for whom they were filed. We should be surprised if an allegation in a writ should be held to be outside the protection of the statute, if there should be a case in which that protection was needed. On the same principle we think that schedules in bankruptcy are protected. We can see no reason that would apply to an answer in equity that does not apply to them. They are required by the law. They are a regular step in the written procedure preliminary to the proof of facts. If necessary, it might be argued that they are pleadings within the meaning of the act. Bankruptcy is a proceeding in rem. The schedules indicate those who are to be made parties to the proceeding, the extent of their supposed claims, and the subject-matter of the distribution. Bankruptcy Act July 1 1898, c. 541, Secs. 7 (8), 17 (3), 30 Stat. 548, 551 (U.S. Comp. St. 1901, pp. 3425, 3428). They have such characteristics of pleadings as are possible at that stage of a...