United States v. Lay Fish Co.

• Citation: 13 F.2d 136
• Decision Date: 04 January 1926
• Docket Number: No. 1113.,1113.
• Parties: UNITED STATES v. LAY FISH CO., Inc., et al.
• Court: U.S. District Court — Southern District of New York

13 F.2d 136 (1926)

UNITED STATES v. LAY FISH CO., Inc., et al.

No. 1113.

District Court, S. D. New York.

January 4, 1926.

Emory R. Buckner, U. S. Atty., of New York City (Alexander B. Royce, William D. Whitney, and Israel B. Oseas, Sp. Asst. U. S. Attys., all of New York City, of counsel), for the United States.

Goldstein & Goldstein, of New York City (Jonah J. Goldstein and Aiken A. Pope, both of New York City, of counsel), for defendants Cohen, Maibach, and Rice.

Rothwell, Harper & Matthews, of New York City (Harold Harper, of New York City, of counsel), for defendants Begloff and Pini.

AUGUSTUS N. HAND, District Judge.

An indictment has been found against the Lay Fish Company, Inc., and other corporations, and the defendants Begloff, Cohen, Maibach, Pini, and Rice, for violation of the Sherman Anti-Trust Act (Comp. St. § 8820 et seq.). The individual defendants Begloff, Cohen, Maibach, and Pini appeared before the grand jury, in response to subpœnas duces tecum addressed to the corporations of which they were respectively officers, were sworn, protested against the validity of the subpœnas, stated the office which each held, produced a list of the documents submitted, testified that the books and papers were those of the corporations called for by the subpœnas, and were then excused. No one of them claimed any personal immunity flowing from his appearance. Rice was likewise called before the grand jury in response to a subpœna addressed to himself, was sworn, and gave testimony, but made no claim of immunity.

The foregoing five defendants have filed special pleas in bar, based upon the following immunity provisions in the Act of February 25, 1903 (Comp. St. § 8578): "No person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit, or prosecution under said acts, * * *" and the amendment of June 30, 1906, to the foregoing act: "Immunity shall extend only to a natural person who, in obedience to a subpœna, gives testimony under oath or produces evidence, documentary or otherwise, under oath." Comp. St. § 8580.

To the pleas in bar the government demurs. I think the pleas of the defendants Begloff, Cohen, Maibach, and Pini are without merit. The corporations had to produce their books and papers in answer to subpœnas (Wilson v. United States, 221 U. S. 361, 31 S. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558), and the testimony amounted to no more than an identification of the books by a responsible officer. This was a step in obtaining the production of the books, was ex necessitate rei a matter of corporate record, accessible at least by subpœna to the government, and was no more a subject of personal immunity, because the disclosure might possibly injure the individual officers, than were the contents of the books, because they might have a like effect. Indeed, I can see little difference between testimony of the character given and a production of the books under a subpœna without it. Such production would seem to amount to an admission both by the producing officer and the corporation that the documents were those of the corporation.

Judge Lacombe seems to have taken this view in Heike v. United States, 192 F. 88, 112 C. C. A. 620, when he said of the officer who there produced the books of the American Sugar Refining Company: "He testified, of course, that he was the person to whom the subpœnas were addressed, secretary of the New York corporation, and secretary and treasurer of the New Jersey corporation. That circumstance was well known when the subpœnas were prepared and addressed to him; he held these offices for many years; his official position was matter of record. To interpret the statute as securing immunity to an officer of a company for offenses committed while such officer, merely because he has stated under oath on some prior...