In re Moser

101 N.W. 588, 138 Mich. 302

• Court: Michigan Supreme Court
• Decided: December 7, 1904
• Docket: Docket No. 239
• Status: Published

Opinions

Grant, J.

(after stating the facts). Under the Constitutions of Michigan and the United States, no witness can be compelled to give testimony which might tend to criminate himself or expose him to a criminal prosecution. The provision in each Constitution is the same. Many cases have arisen in the courts, both of the States and of the United States, under this provision. The only difficulty has been in determining whether the facts of each case bring the party under the protection afforded him by the Constitution.

The shield afforded is personal to the witness, designed for his own protection, and not for the protection of others. The witness himself is not the sole judge of whether an answer to a question will tend to criminate himself. The due administration of the law does not permit him to arbitrarily hide behind a fancied or intangible danger to himself. It gives him no right to attempt to avert real danger from others, no matter how closely he may be associated with them. Unless the answer to the question may tend to criminate himself, he must answer, whatever the consequence may be to others; otherwise the administration of justice would be seriously obstructed.

' The position on behalf of the petitioner appears to be that the witness himself is the sole judge, and that, when he says the answer may tend to criminate him, the controversy is closed. The Constitution vests in the witness no such arbitrary power, and we are cited to no decision which goes to that extent.

Counsel for petitioner cite and rely upon People, ex rel. Taylor, v. Forbes, 143 N. Y. 219, and Adams v. Lloyd, 3 Hulst. & Nor. 351. The language of those cases extends the right of’ the witness to protect himself as far as any which I have examined. In Adams v. Lloyd it is said:

“Where the judge is perfectly certain that, the witness is trifling with the authority of the court, and availing himself of the rule of law to keep back the truth, having in reality no ground whatever for claiming the privilege, then the judge is right in insisting on his answering the question. ”

In People, ex rel. Taylor, v. Forbes the testimony of the witness and the facts elicited clearly showed that the replies to the questions put might naturally tend to criminate the witness. In that case the court say:

“The weight of authority seems to be in favor of the rule that the witness may be compelled to answer when he contumaciously refuses, or when it is perfectly clear and plain that he is mistaken, and. that the answer cannot possibly injure him, or tend in any degree to subject him to the peril of prosecution. * * * Where it is not so perfectly evident and manifest that the answer called for cannot incriminate, as to preclude all reasonable doubt or fair argument, the privilege must be recognized and protected.”

In Ex parte Senior, 37 Fla. 1, it is said:

“It has never been recognized that he [the witness] •alone has the right in all cases to decide whether his answer will tend to criminate him. Such a rule would be mischievous and enable unscrupulous witnesses to defeat the ends of justice.”

In the recent case of Ex parte Irvine, 74 Fed. 954, it is said: *

“ The true rule is that it is for the judge before whom the question arises to decide whether an answer to the -question put may reasonably have a tendency to criminate the witness, or to furnish proof of a link in the chain of •evidence necessary to convict him of a crime. * * * It must appear to the court, from the character of the question, and the other facts adduced in the case, that there is some tangible and substantial probability that the answer of the witness may help to convict him of a crime.”

Considering the importance of the question, I deem it proper though this opinion may be long, to here quote the language of Chief Justice Marshall in Burr’s Trial [Fed. Cas. No. 14,692 e] :

“ It is a settled maxim of law that no man is bound to ■criminate himself. This maxim forms one exception to the general rule which declares that every person is compellable to bear testimony in a court of justice. For the witness who considers himself as being within this exception, it is alleged that he is, and from the nature of things must be, the sole judge of the effect of his answer; that .he is consequently at liberty to refuse to answer any question if he will say, upon his oath, that his answer to that question might criminate himself.

“ When this opinion was first suggested, the court conceived the principle laid down at the bar to be too broad, .and therefore required that authorities in support of it might be adduced. Authorities have been adduced, and have been considered. In all of them the court could perceive that an answer to the question propounded might criminate the witness, and he was informed that he was at liberty to refuse an answer. These cases do not appear to the court to support the principle laid down by the counsel for the witness, in the full latitude in which they have stated it. There is no distinction which takes from the court the right to consider and decide whether any direct answer to the particular question propounded could be reasonably supposed to affect the witness. There may be questions, no direct answer to which could in any degree affect him; and there is no case which goes so far as to say that he is not bound to answer such questions. The Case of Goosely [Fed. Cas. No. 15,230], in this court, is perhaps the strongest that has been adduced. But the general doctrine of the judge in that case must have referred to the circumstances which showed that the answer might criminate him.

“ When two principles come in conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent. The principle which entitles the United States to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded. They are believed both to be preserved to a reasonable extent, and according to the true intention of the rule, and of the exception to that rule, by observing that course which, it is conceived, courts have generally observed. It is this: When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims. It follows necessarily, then, from this statement of things, that if the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact. * * *

“The gentlemen of the bar will understand the rule laid down by the court to be this: It is the province of the court’ to judge whether any direct answer to the question which may be proposed-will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such a case the witness must himself judge what his answer will be, and if he say, on oath, that he cannot answer without accusing himself, he cannot be compelled to answer.” 1 Burr's Trial, 243.

Other cases might be cited, but these we deem sufficient. It follows that, if the facts are as stated in the finding of the court, the petitioner was properly convicted of contempt. The question was determined by the court below upon the testimony of the petitioner, given before the grand jury. From that it is established that, during the time in which the books sought and ordered to be produced were kept, and the entries therein made, the petitioner had no connection whatever with, and no interest in any form in, the Bartlett Illuminating Company, or any of its officers. He did not during that time live in this State, but lived in Little Rock, Ark. He testified that he knew nothing about those entries personally, and had no part in making them. He testified as follows:

“ I was not here during the letting of the contract by the city to the Bartlett Illuminating Company for lighting. I had no connection whatever with that matter. That was long before I came here. I was not in the city at that time. * * * I had nothing to do with the books in 1900. I don’t think there is anything in these books that •would tend to criminate me in 1900. * * *

“Q. Does the customers’ledger contain anything for the year 1900 that might tend to criminate you ? * * * A. Personally; no, sir.

“Q. You decline to produce the customers’ ledger for 1900 ? A. Yes, sir.

“Q. Not because it would tend to criminate you; that’s not the reason you decline to do it ? A. Not the books for 1900; no, sir.

“ Q. There is nothing in the books of 1900 that would tend to criminate you ? A. No, sir.”

He further testified that he refused to produce the books under the advice of his attorneys.

“ They have advised me not to produce any of the books. They said I shouldn’t do it, because I didn’t have to do it.”'

He nowhere testified that his attorney advised him that there was anything in the books during the time covered that could in any way tend to criminate him. In one part of his examination, after testifying that he did not see how the production of the books during that time could in any way criminate him, he said:

“I decline to answer these questions on the ground our' attorney says. ‘ We don’t have to.’ That is the sole reason I decline to produce them.”

Again he testified that he did not decline to produce, them for the year 1900 because they would tend to criminate him, for he said they would not, but he declined to produce them on the advice of his attorney. These statements are reiterated several times during his examination. The only basis furnished in his testimony which could be construed as protecting him is this:

“ Q. The only question is this: Whether or not you decline to produce those books before this grand jury because there is evidence in the books that would tend to criminate you; that is what we want to know; and whether that is the reason why you decline to produce the books ? A. I decline to answer the question on the ground it might have a tendency to criminate me.

“ Q. The production of the books ? A. Yes, sir.

“ Q. You think, then, there is some evidence in those books, that, if it should come to the light of this grand jury, might tend to criminate you ? A. I decline to answer.

“ Q. You decline to answer that question ? A. Please' state the question again.

“ (Question read.) A. It might.”

This testimony is followed by the statement again that he had no connection whatever with the letting of the contract which the grand jury were investigating; that it was long before he came there; that he had nothing to do with the Saginaw business then, and knew nothing about it. It is then asked why there was evidence in the books which might tend to criminate him, to which he replied:

■ “ There may be some little things that would come up from time to time, where I might have given a few things away, perhaps—lamps or things of that kind—that might have a tendency to criminate me, although there is nothing in it; absolutely nothing.”

From this evidence, I think it manifest that he only based his claim for the privilege upon the entries made upon the books after he became the president of the company, and not that there was anything in the former entries which could by any possibility tend to criminate him. I think it apparent that the sole basis for the petitioner’s refusing to produce the books was his desire to protect the officers of the corporation during the time under investigation, and those with whom they dealt as officers of the municipality.

In re Peasley, 44 Fed. 271, is very similar in its facts to this case, and the Federal court (Judge Gresham presiding) held the witness guilty of contempt.

In Brown v. Walker, 161 U. S. 591, it was held that the Federal act of 1893 shielded the witness from criminal prosecution in consequence of his testimony. The court, however, recognized the rule applicable here, in holding that the witness could not refuse to testify against his fellow officers, saying:

“ It would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice.”

See, also, 77. S. Express Co. v. Henderson, 69 Iowa, 40.

2. Does the production of these books under the order of the court amount to unjustifiable search and seizure prohibited by the Constitution ? The learned counsel for the petitioner state their position upon this point as follows :

‘ ‘ There is no difference in principle between the forcibly seizing and carrying away of such books by the sheriff or other court officer, and the compulsory production of them on a subpoena duces tecum. If the officers of this company, whom the people are seeking to indict, have any rights in the information contained in those books, or in the books themselves, which would enable them to resist the sheriff if he sought to take the books away by force, then obedience to a subpoena duces tecum cannot be compelled unless the law will sanction an attempt to do by indirection what it would be unlawful to do directly. * * *

“And therefore we contend that, even if there was nothing in these books which would involve Mr. Moser in a criminal charge, still he was right in his refusal to produce them if they contained evidence of the guilt of other officers and members of the corporation—persons who, if actually present, would have a right to take them and keep them for their own protection, as against all the powers of the prosecution.”

The difference between seizing record books and documents of another upon a search warrant, and the production of the same upon a subpoena duces tecum, is apparent. In the former the owner is absolutely deprived of all possession and control thereof, and they and their contents are subject to the gaze and examination of others. In the latter the records and documents are not taken from the possession of the owner. They are produced in court by him in his possession, and only such matters therein as pertain to the issue involved can be subject to the examination of the proper officers of the court.- The production of books and papers for inspection and use in suits, both civil and criminal, is as old as the law itself. Whether the production is by search warrant or by a subpoena duces tecum, the necessity therefor must be shown to the court, and the particular documents or records required sufficiently specified in the application; and, in either process, courts will permit only the examination of such parts thereof as relate to the issue before the court. The process for search and seizure is the one usually resorted to to determine whether property stolen or unlawfully seized is in the possession of another. The usual process to secure evidence from records and documents is by subpoena duces tecum, and no case is cited where an attempt has been made to proceed by search warrant. No private individual can be compelled to produce his books or papers for the purpose of affording evidence against himself in a criminal prosecution. Neither can the subterfuge of subpoenaing his clerk, who has access to or temporary possession of the books for the purpose of his employer’s business, be resorted to, to compel a production of the books. The possession of the clerk in such case is the possession of his employer. The books of a corporation are not the private property or books of petitioner or any other officer of the company. The corporation is a distinct entity. Randall v. Dudley, 111 Mich. 437; Rough v. Breitung, 117 Mich. 48, and authorities there cited.

The petitioner asserts that the conduct of his predecessor, the former president of the corporation, is under investigation by the grand jury. Mr. Moser testified that he, as president, had possession and control of the books required. They are not in his possession as owner thereof, but as an officer of the company. The former president presumably was entitled to the control in the same manner as is Mr. Moser, but when he ceased to be president he ceased to be entitled to the actual possession or control of the books, and the right of actual possession became vested in Mr. Moser, as president. If the former president made or caused to be made entries upon the books of his principal which tend to convict him of crime, neither the corporation itself, which is not subject to a penalty, nor any agent thereof who has the actual and legal possession of the books, can refuse to produce such entries.

The question was not involved in Boyd v. U. S., 116 U. S. 616. The court characterized the proceeding in that case as “an attempt to extort from the party his private books and papers to make him liable for a penalty, or to forfeit his property.” It was equivalent to compelling him to produce evidence of his own criminality. It did not involve entries which he had made in books belonging to another.

In Re Peasley, 44 Fed. 271, the grand jury were investigating certain alleged violations of the interstate commerce law by the general agent of a railroad company. Mr. Peasley was its treasurer, and had control and possession of the documents sought to be produced before the grand jury. He was held guilty of contempt for refusing to produce them. That case seems to be the parallel of this.

In Brown v. Walker, 161 U. S. 591, the auditor of a railroad company was asked whether it had transported coal at a lower rate than those established between terminal points, and whether any rebate, refund, or commission had been paid by the company, and to state the amount, if any. He was held guilty of contempt in declining to answer. If the boobs had contained entries of such rebates and illegal rates, in the handwriting of the officer of the company whose conduct was under investigation, or made by his authority, and the auditor had control or possession of the boobs, could he refuse on the ground of an unjustifiable search and seizure ? There would be no seizure of the officer’s books or papers. Neither would there be any seizure of the corporation’s hooks or papers. The officer in whose possession they are would produce' them in court, still in his possession, and show the entries required, if there were any.

In U. S. Express Co. v. Henderson, 69 Iowa, 40, the agent of an express company was subpoenaed to produce the boobs of the corporation, for the purpose of showing that the company had transgressed the law. The refusal to produce was based upon the identity of the witness with his employer, and this was held insufficient.

We think the rule is this: One cannot be compelled to produce his own boobs, or the boobs of another, which are under his control as agent or otherwise, where their production would tend to criminate him; neither can his clerk, whose possession is his possession, be required to produce them; but when, as the agent of another, he chooses to make entries on the books of that other, and those books are in the actual and legal possession and control of another officer of the corporation, or of the corporation itself, such officer may be compelled to produce them, in a proper case, under a subpoena duces tecum.

The unreported case of Frazer v. Circuit Judge does not apply here. In that case the officers of the Detroit City Railway Company, in whose possession and control the books were, and who were under investigation by the grand jury, were ordered by a subpoena duces tecum to produce the books. It requires no argument to show that they were thus required to produce testimony against themselves and were therefore within the protection of the Constitution. In that case the circuit judge found “that Robert J. McKenny, the person against whom the order for the production of said books and papers is sought, is but an employe of the said Detroit City Railway Company, as one of its bookkeepers, and has no control over said books and papers independent of the officers of said corporation, and has access to them and uses them simply in a clerical capacity; said books being under the actual and legal control of the officers of said company at the office of said company.”

The order of the court below is affirmed.

Carpenter, Montgomery, and Hooker, JJ., concurred with Grant, J.