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200 U.S.

Argument for Appellant.

The question whether the witness was required to answer the questions propounded to him by the grand jury involves the construction and application of the Fifth Amendment of the Constitution of the United States, and the claim was made in his petition for the writ of habeas corpus that his commitment in that respect and others was in contravention of the Constitution. Counselman v. Hitchcock, 142 U. S. 547; Horner v. United States, No. 2, 143 U. S. 570; Dimick v. Tompkins, 194 U. S. 540; Craemer v. Washington, 168 U. S. 124.

If Ballmann was protected by the Fifth Amendment from answering the questions, the order committing him for refusing to answer is void, and he is entitled to be released on habeas corpus. Ex parte Fisk, 113 U. S. 713; Ex parte Ayers, 123 U. S. 443, 485.

There was no evidence and no circumstances before the District Court to justify it in rejecting the sworn statement of the witness that an answer to the questions might criminate him.

The witness is not obliged to say of what offense he has been guilty or in what way an answer might lead to his detection or conviction, for that would defeat the very object of the privilege. Lewisohn v. O'Brien, 176 N. Y. 253; Taylor v. Forbes, 143 N. Y. 219; United States v. Burr, Fed. Cas. 14,692e; Janvrin v. Scammon, 29 N. H. 290; Temple v. Commonwealth, 75 Virginia, 892; Re Kantner, 117 Fed. Rep. 356; Chamberlain v. Willson, 12 Vermont, 491; Warner v. Lucas, 10 Ohio 336.

See Lawson v. Boyden, 160 Illinois, 613, as to rule on the burden of proof. A witness cannot be deprived of his privilege, on the ground that the offense is barred by limitation, unless it appears affirmatively that no prosecution is pending against him. See also 29 Am. & Eng. Ency. of Law, 842; Bank v. Henry, 2 Denio, 156; Henry v. Bank, 1 N. Y. 87; Southern Ry. News Co. v. Russell, 91 Georgia, 808; Marshall v. Riley, 7 Georgia, 372; Matter of T'appan, 9 How. Pr. 395.

The evidence before the District Court suggested that an

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answer to the questions or the production of his books might implicate the witness in several ways.

A witness who claims the privilege of silence is not required to admit that he is guilty. The protection of the Constitution is for the innocent as well as for the guilty. People v. Forbes, 143 N. Y. 219.

A witness or party in a Federal court is entitled to protect himself against self-crimination under a law of the State in which the court is sitting. United States v. Saline Bank, 1 Pet. 100. See statute of Ohio against bucket shops, passed February 7, 1899, 86 Ohio Laws, 12; 3 Bates' Annotated Ohio Stat., 4th ed., pp. 3350, 6931, 6934, § 1. Suits under $$ 4271

$ 4276 are actions for penalties. Cooper v. Rowley, 29 Ohio St. 547.

It is immaterial that the answer of the witness could not be used against him directly. It is enough that it might lead to incriminating disclosures. Counselman v. Hitchcock, 142 U. S. 547, and in cases approved; Emery's Case, 107 Massachusetts, 172.

Where there is no legal evidence to sustain the conviction for contempt for failing to produce a cash book the petitioner is entitled to be discharged on habeas corpus. Watts & Sachs, 190 U. S. 1, 35; Iasiyi v. Brown, 1 Curtis, 401; Lang lell, Eq. Pl., $ 211; Hall v. Young, 37 N. H. 134; Baggott v. Goodwin, 17 Ohio St. 76, 81.

In order to convict the defendant it was necessary for the Government to prove that a book answering the description of the subparna was in existence and under his control on April 7. There was no evidence of this fact or of the existence or possession of any cash book after April 3. Electric Co. v. Westinghouse Co., 129 Fed. Rep. 105, and cases cited 106.

The presumption of the innocence of the accused has relation to every fact that must be established to prove guilt beyond a reasonable doubt. Kirby v. United States, 174 U. S. 55; Coffin v. United States, 156 ( S. 432.

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Argument for the United States.

Conjecture cannot take the place of proof. Chaffee v. United States, 18 Wall. 516.

200 U. S.

The court below overlooked the fact that it was forbidden by the act of March 16, 1878, c. 37, 20 Stat. 30, from indulging any presumption against the defendant because he did not testify, and that the court was precluded by § 860, Rev. Stat., from using against him his testimony before the grand jury that he never used a cash book. The District Court found that he was guilty because he did not prove that he was innocent.

Testimony was improperly received under § 860. Tucker v. United States, 151 U. S. 164.

The order directing Ballmann to produce all books and papers in his control, was repugnant to the Fourth Amendment. Ex parte Brown, 72 Missouri, 83; Ex parte Clarke, 126 California, 235.

The order of April 8, requiring the defendant to produce a cash book, was unlawful under the Fourth and Fifth Amendments.

Whenever a witness is excused from giving testimony upon the ground that an answer might criminate him, he cannot be compelled to produce books or papers which would have that effect. Lawson v. Boyden, 160 Illinois, 613, 618; Boylen v. Smithman, 146 Pa. St. 255, 274; Boyd v. United States, 116 U. S. 616; 3 Wigmore, Evidence, § 2264..

The Solicitor General for the United States:

The guarantee of the Fourth Amendment was founded on resistance to unwarrantable intrusion by executive agents. "General warrants," not naming persons or things, were finally overthrown in the cases of Wilkes and Entick. Cooley, Const. Lim., 7th ed., 426, 428; Wilkes Case, 2 Wils. 151; 19 State Trials, 1405; Entick v. Carrington, 2 Wils. 275; 19 State Trials, 1030. In America the chief abuse was by writs of assistance. from the courts to revenue officers. John Adams' Work, vol. II, 523; 4 Bancroft's Hist. U. S., 414; Quincy Rep. (Mass.)

Argument for the United States.

200 U. S.

51, and App., p. 395, for history of writs of assistance, by Mr. Justice Gray; Boyd v. United States, infra.; 2 Story, Const., 5th ed., $ 1901. Such evils have disappeared, and the remedy of the constitutional guarantee must be construed in the light of its origin and purpose, and must not be enlarged beyond its true scope.

The rule of the Fifth Amendment appears first in the canon law phrase. Vemo tenetur seipsum prodere (or accusare), which grew out oi the heresy trials in England early in the seventeenth century.

This court has, however, found an intimate connection between the two Amendments, Boyd v. United States, 116 U. S. 616, and held that where the thing forbidden in the Fifth Amendment-compelling a man to be a witness against himself—is the object of a search and seizure of his private papers, it is an unreasonable search and seizure within the Fourth Amendment.

In the present case there is neither seizure, search nor arrest.

As to the extent of the protection afforded by the Fifth Amendment see Counselman v. Hitchcock, 142 U. S. 547; Interstate Commerce Comm. v. Brimson, 154 U. S. 447; 3 Wigmore, Evidence, 2967; Brown v. Walker, 161 U. S. 591, in which the danger of extending Counselman v. Hitchcock was pointed out.

This case is readily distinguishable from the Counselman case. There the question related to transactions with which Counselman was manifestly connected and which were under investigation by the grand jury. But Ballmann's real apprehension seems to be that his previous answers will be shown to be untrue.

Perjury is not privileged. It has always formed an exception in immunity statutes. Section 860, Rev. Stat.; Rev. Stat. Kentucky $ 1973; Commonwealth v. Turner, 33 S. W. Rep. 88; Corrupt Practices Acts, 15, 16 Vict., c. 57; 26, 27 Vict., c. 29; Queen v. Hilme, L. R. 5 Q. B. 377. See also State v. Faulkner, 75 S. W. Rep. (Mo.) 116; Mackin v. People.

200 U.S.

Argument for the United States.

115 Illinois, 312. Irresistible considerations of public policy, which underlie the law, demand that false swearing shall be punished, and that false swearing shall not block the machinery of justice.

Barring perjury, it does not appear that direct answers to the questions asked could possibly criminate him. It is for the court to determine, in the first instance, whether a direct answer could criminate the witness. He is not the sole judge of the matter, and his mere statement that a direct answer would criminate him is insufficient. For the English rule, see Reg. v. Boyes, 1 Best. & Smith, 329; Ex parte Reynolds, 20 Ch. Div. 294; Best's Law of Evidence, $ 128. For the American rule, see 1 Robertson's Burr's Trials, Phila., 1808, 205, 246, and 25 Fed. Cas. No. 14,692e; Greenleaf on Evidence, § $ 451; Irvine's case, 74 Fed. Rep. 954; United States v. Miller,

, 2 Cr. C. C. 247; Sanderson's Case, 3 Cr. C. C. 638; United States v. McCarthy, 18 Fed. Rep. 87; Stevens v. State, 50 Kansas, 712; Ford v. State, 29 Indiana, 541; Minters v. People, 139 Illinois, 363; People v. Mather, 4 Wend. 229, 254; Ex parte Senior, 37 Florida, 1, 20; Richman v. State, 2 Green (Iowa), 532; Printz v. Cheeney, 11 Iowa, 469; La Fontaine v. Southern Underwriters, 83 N. Car. 132, 141; Floyd v. State, 7 Texas, 215; Miskimmons v. Shaver, 8 Wyoming, 392, 418.

In nearly all, if not all, the cases in which the privilege was allowed it was apparent from the question asked that a direct answer would criminate. While not discussing whether it is for the court or the witness to determine if an answer would criminate him, it is regarded as a matter for the court. See The King v. Gordon, 2 Doug. K. B. Rep. 593; Paxton v. Douglas, 19 Ves. Ch. 224; Maloney v. Bartley, 3 Campb. 210; Cates v. Hardacre, 3 Taunt. 424; Rex v. Pegler, 5 C. & P. 687; Fisher v. Ronalds, 16 Eng. Law & Eq. 417; Emery's Case, 107 Massachusetts, 172; In re Graham, 8 Ben. 419; Bank v. Henry, 2 Den. 155; Taylor v. Seaman, 8 Misc. N. Y. 152; Cullen v. Commonwealth, 24 Gratt. 624; Smith v. Smith, 116 N. Car. 386; Lester v. Boker, 6 Blackf. (Ind.) 439; Johnson v. Goss,

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