United States v. Appel

• Decision Date: 01 June 1913
• Citation: 211 F. 495
• Parties: UNITED STATES v. APPEL.
• Court: U.S. District Court — Southern District of New York

211 F. 495

UNITED STATES v. APPEL.

United States District Court, S.D. New York.

June, 1913

John E Walker and Stephen Brooks Rosenthal, both of New York City for the United States.

L Dorfman, of New York City, for respondent.

HAND District Judge.

The power of the court to treat as a criminal contempt a persistent perjury which blocks the inquiry is settled by authority in this circuit. Re Schulman (C.C.A. 2d Cir.) 23 Am.Bankr.Rep. 809, 177 F. 191, 101 C.C.A. 361. It is indeed impossible logically to distinguish between the case of a downright refusal to testify and that of evasion by obvious subterfuge and mere formal compliance.

The rule, I think, ought to be this: If the witness' conduct shows beyond any doubt whatever that he is refusing to tell what he knows, he is in contempt of court. That conduct is of course, beyond question when he flatly refuses to answer, but it may appear in other ways. A court, like any one else who is in earnest, ought not to be put off by transparent sham, and the mere fact that the witness gives some answer cannot be an absolute test. For instance, it could not be enough for a witness to say that he did not remember where he had slept the night before, if he was sane and sober, or that he could not tell whether he had been married more than a week. If a court is to have any power at all to compel an answer, it must surely have power to compel an answer which is not given to fob off inquiry. Nevertheless, this power must not be used to punish perjury, and the only proper test is whether on its mere face, and without inquiry collaterally, the testimony is not a bona fide effort to answer the questions at all.

The examination took place on May 19th. On May 14th the respondent drew $537.50, on May 12th $415.06, making in all $940 within a week of the date of the examination. He was unable to state what he had done with any part of this except to state that he paid labor with it, and the pay roll by his testimony amounted to $58 a week, or about $120 for two weeks, which was the time during which the roll was unpaid. There remained, therefore, $800. His explanation of this was that he had played poker during the past week once and had lost a few hundred dollars. When pressed he said it was not $800, but he could not remember whether it was $500, $400 $300, or $100. He was next questioned about a withdrawal on May 10th of $200, and said that he spent it, but how ...