Southbridge Finishing Co. v. Golding

• Decision Date: 17 June 1955
• Citation: 208 Misc. 846,143 N.Y.S.2d 911
• Parties: SOUTHBRIDGE FINISHING CO., Plaintiff, v. Julius GOLDING doing business as J. G. Textile Company, Defendant.
• Court: New York Supreme Court

Page 911

143 N.Y.S.2d 911

208 Misc. 846

SOUTHBRIDGE FINISHING CO., Plaintiff, v. Julius GOLDING doing business as J. G. Textile Company, Defendant.

Supreme Court, Special Term, New York County, Part I.

June 17, 1955.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for plaintiff.

Louis I. Gribetz, New York City, for defendant.

WALTER, Justice.

Upon plaintiff's examination of defendant before trial defendant declined to answer substantially every question put to him upon the ground of his constitutional privilege against self-incrimination, and plaintiff moves to compel him to answer the questions or to strike out his answer to the complaint because of his failure to do so.

Plaintiff's complaint charges defendant with the commission of a crime, viz., entering into a conspiracy to cheat and defraud plaintiff and doing fraudulent acts pursuant to such conspiracy, with resulting damage to plaintiff; and the examination of defendant before trial was sought and ordered for the purpose of obtaining proof of the allegations of the complaint.

Plaintiff thus indisputably is engaged in an attempt to prove be defendant's own testimony that defendant committed a crime; and there hence is a strong prima facie showing that defendant's claim of his constitutional privilege is well founded.

Defendant opposed the motion for examination upon the ground, among others, that because the complaint charges criminal acts he could not constitutionally be required to submit to examination. The court nevertheless granted the motion, but in so doing the court said 'The party to be examined may claim any privileges that are available at the examination'; and defendant claimed the privilege very promptly after the examination began.

Yet, because defendant (1) interposed a verified answer to the complaint in which he denied the allegations of crime and pleaded affirmative defenses, and (2) swore in his affidavit in opposition to the motion for the examination that the facts are contrary to plaintiff's allegations, plaintiff now contends that defendant has waived his right to claim his constitutional privilege.

I think the contention plainly untenable.

To the uninitiated and the naive and also to some other people whom it would not occur to me to so describe, it is manifestly and necessarily inconsistent for a man to assert that he is innocent and yet claim that his answers to questions may tend to incriminate him. In their view, nothing that an innocent man truthfully says in answer to any question may tend to incriminate him, and, therefore, the assertion of innocence necessarily demonstrates that the claim of possible incrimination is not made in good faith and conversely, the claim of possible incrimination is necessarily an admission of guilt. But as many courts have pointed out in numerous cases over a long period of time, that bit of logical formalism has no relation to reality.

It is of course well settled law that no inference of guilt can be drawn from an assertion of the privilege; and I am of the opinion that, except in occasional instances under comparatively rare circumstances, such an inference is just as inadmissible in the realms of morals, logic and justice as it is in a court room.

Rarely, if ever, can the guilt or or innocence of a person be determined from one single act, fact, or circumstance. Generally, if not always, the prosecutor who would convict must piece together many acts, many facts, and many circumstances; and the advocate who would obtain an acquittal must meet the prosecutor's chain of evidence with another chain of other acts, facts, and circumstances. Many an innocent man has found himself unwittingly enmeshed in a combination of circumstances which point strongly to his being guilty of some crime. Sometimes such a man escapes prosecution only because the prosecutor lacks one detail which is essential to a reasonable chance of obtaining a conviction and is obtainable only from the man himself. Sometimes such a man, upon being prosecuted, is able to obtain acquittal only because he cannot be compelled to give proof of that missing detail; and occasionally some innocent man is actually convicted of a crime he did not commit.

Denial of guilt hence is not a confession that the claim of possible incrimination is not put forward reasonably and in good faith; and, conversely, assertion of the privilege against self-incrimination is not a confession of guilt. Some of the recent discussions of the subject may be noted: 40 Am.Bar Ass'n Journal, 404; id. 502; id. 582; id. 588; 41 ibid 307; Griswold, The Fifth Amendment Today, Harvard Univ. Press, 1955; Maffie v. United States, 1 Cir., 209 F.2d 225; see 8 Wigmore on Evidence, 3rd ed. § 2272. Plaintiff here does not go to the length of asserting that defendant waived the privilege by denying guilt. Counsel quotes and underscores defendant's assertion that the facts are to the contrary of the complaint's allegation, and thus gives an intimation that he was about to make that assertion, but elsewhere in his brief he concedes that a plea of not guilty (or, in civil law parlance, a general denial) is not a waiver of the privilege, and rests his contention of waiver upon the grounds that defendant verified his answer to the complaint and in addition to denials set up affirmative defenses.

I think the contention rests upon a wholly untenable theory of the doctrine of waiver.

Counsel first states the doctrine as being that a witness waives the privilege 'by voluntarily testifying about the subject matter in issue', which I think is clearly contrary to the authorities; and he then argues that a verified pleading is 'testimony' and hence by serving a verified pleading defendant 'voluntarily testified' and hence waived the privilege, which I think is an untenable non sequitur.

The privilege of course must be asserted in order to be availed of, and what is disclosed in testimony given before the privilege is claimed cannot be recalled or obliterated by a subsequent claim of the privilege; but waiver does not result from merely 'voluntarily testifying about the subject matter in issue'.

Where upon the trial of an indictment against him the accused defendant elects to exercise his statutory privilege of testifying on his own behalf, he becomes subject to cross-examination like any other witness and in that sense may be said to have waived his constitutional privilege against self-incrimination. People v. Tice, 131 N.Y. 651, 30 N.E. 494, 15 L.R.A. 669; People v. Rosenheimer, 209 N.Y. 115, 123, 102 N.E. 530, 533, 46 L.R.A., N.S., 977; People v. Trybus, 219 N.Y. 18, 24, 113 N.E. 538, 540; People v. Russo, 251 App.Div. 176, 295 N.Y.S. 457; People v. Shapiro, 308 N.Y. 453, 126 N.E.2d 559; Brown v. Walker, 161 U.S. 591, 597, 598, 16 S.Ct. 644, 40 L.Ed. 819; Fitzpatrick v. United States, 178 U.S. 304, 20 S.Ct. 944, 44 L.Ed. 1078.

But in People ex rel. Taylor v. Forbes, 143 N.Y. 219, 38 N.E. 303, a witness who testified under oath before a grand jury that he had no connection with the matter under investigation (the injection of poisonous gas into a room in which university students were holding a banquet) was held not to have waived his right to claim his privilege of not answering further questions designed to show that he had some connection.

Similarly, in Siegel v. Crawford, 292 N.Y. 651, 55 N.E.2d 516, it was held to be erroneous to compel a witness to answer merely because he had answered earlier questions on the subject. In Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138, the claim that by verifying and filing bankruptcy schedules the constitutional privilege had been waived was specifically rejected. The court there said, 254 U.S. at page 72, 41 S.Ct. at page 26:

'The schedules, standing alone, did not amount to an admission of guilt or furnish clear proof of crime, and the mere filing of them did not constitute a waiver of the right to stop short whenever the bankrupt could fairly claim that to answer might tend to incriminate him.'

In Brown v. Walker, 161 U.S. 591, 597, 16 S.Ct. 644, 647, 40...