Page images
PDF
EPUB

221 U. S.

Argument for the United States.

716; Crowther v. Appleby, L. R. 9 C. P. 27; Nelson v. United States, 201 U. S. 92, 115; Wigmore on Evidence, § 2200; United States v. Ralston, 17 Fed. Rep. 903; Re Shaw, 172 Fed. Rep. 520. The cases cited by the Government do not sustain its contention.

A subpoena addressed to a corporation merely would be entirely subversive of the right guaranteed by the Constitution and the English Bill of Rights.

The dictum of Judge Lacombe in United States v. American Tobacco Co., 146 Fed. Rep. 557, and the decision of the same judge in In re American Sugar Co., 178 Fed. Rep. 109, upholding the validity of a subpoena addressed to a corporation, and not to any officer thereof, are not in accord with the spirit of Federal decisions, the Constitution of the United States, and the rights of an individual guaranteed since the English Bill of Rights.

The Solicitor General, with whom Mr. Henry E. Colton, Special Assistant to the Attorney General, was on the brief, for the United States:

The grand jury was engaged in an inquiry which gave it authority to summon witnesses, and to call for the production of books and papers. Hale v. Henkel, 201

U. S. 43.

The subpoena duces tecum was a valid process. United States v. Am. Tobacco Co., 146 Fed. Rep. 557; In re Am. Sugar Co., 178 Fed. Rep. 109; Consolidated Rendering Co. v. Vermont, 207 U. S. 541.

No objection to the subpoena having been made at any prior stage of the proceedings, such objection cannot be made for the first time in this court.

The search and seizure involved in the subpoena duces tecum were not unreasonable, since the subpoena was specific as to the person to whom it was directed and what was to be produced thereunder, and it was issued for the lawful purpose of securing material testimony in an

[blocks in formation]

investigation in which the grand jury were then engaged. Hale v. Henkel, 201 U. S. 43; McAlister v. Henkel, 201 U.S. 90; Consolidated Rendering Co. v. Vermont, 207 U. S. 541; United States v. Am. Tobacco Co., 146 Fed. Rep. 557.

Wilson was not required by the subpoena, nor by any of the proceedings thereon, "to be a witness against himself." The subpoena called for a book which belonged to the United Wireless Telegraph Company, which had come into his physical custody simply as an officer of that company, and had been recalled from such custody by formal action of the board of directors. He was not protecting himself in the possession of his own books nor refusing to be a witness against himself, but was obstructing the company and its representatives, other than himself, in the performance of an order of the court for the production of books of the company, which they were willing to perform. State v. Davis, 108 Missouri, 666; State v. Donovan, 10 N. Dak. 203; People v. Henwood, 123 Michigan, 317; State v. Farnum, 73 S. Car. 165; State v. Davis, 69 S. E. Rep. (W. Va.), 639; L. & N. R. R. Co. v. Commonwealth, 21 Ky. Law Rep. 239; McElree v. Darlington, 187 Pa. St. 593; Pray v. Blanchard Co., 95 App. Div. (N. Y.) 423; People v. Coombs, 158 N. Y. 532; Ex parte Hedden, 90 Pac. Rep. (Nev.) 737; Langdon v. People, 133 Illinois, 382; Bradshaw v. Murphy, 7 Car. & Paine, 612; Evans v. Moseley 2 Dowling's P. C. 364; Perry v. Gibson, 1 Adolphus & Ellis, 48; Sherman v. Barrett, 1 McMullan (S. Car.), 96; United States v. Armour & Co., 142 Fed. Rep. 808.

MR. JUSTICE HUGHES delivered the opinion of the court.

These three cases involve the same question. The first is a writ of error to the Circuit Court to review a judgment committing the plaintiff in error for contempt. The second is an appeal from an order of the Circuit Court dismissing a writ of habeas corpus sued out after such com

[blocks in formation]

mitment. The third is an appeal from an order dismissing a writ of habeas corpus by which a discharge was sought from a later commitment for a similar contempt.

The contempt consisted in the refusal of the plaintiff in error and appellant, Christopher C. Wilson, to permit the inspection by a grand jury of letter press copy books in his possession. The books belonged to a corporation of which he was president and were required to be produced by a subpoena duces tecum.

The circumstances were these: The grand jury empannelled in the Circuit Court for some time had been inquiring into alleged violations of §§ 5440 and 5480 of the United States Revised Statutes by Wilson and others. Wilson was the president of the United Wireless Telegraph Company, a corporation organized under the laws of the State of Maine. On August 3, 1910, the grand jury found two indictments against him and certain officers, directors and stockholders of this corporation, the one charging fraudulent use of the mails and the other a conspiracy for such use. The grand jury continued its investigations and on October 7, 1910, a subpœna duces tecum was issued (set forth in the margin 1), which was directed to the The President of the United States of America to United Wireless Telegraph Company, 42 Broadway, New York, N. Y., Greeting:

[SEAL]

We command you, That all business and excuses being laid aside you appear before the Grand Inquest of the Body of the People of the United States of America for the Southern District of New York, at a Circuit Court to be held in the United States Court House and Post Office Building, Borough of Manhattan, City of New York, on the 10th day of October, 1910, at 11 o'clock in the forenoon, and that you produce at the time and place aforesaid, the following:

Letter press copy books of United Wireless Telegraph Company containing copies of letters and telegrams signed or purporting to be signed by the President of said company during the months of May and June, 1909; in regard to an alleged violation of the statutes of the United States by C. C. Wilson.

And for a failure to produce the aforesaid documents you will be

[blocks in formation]

United Wireless Telegraph Company, requiring its appearance before the grand jury and the production by it of the letter press copy books of the company "containing copies of letters and telegrams signed or purporting to be signed by the President of said company during the month of May and June, 1909; in regard to an alleged violation of the statutes of the United States by C. C. Wilson."

Service was made upon the company by service upon Wilson, as president, and upon its secretary and two directors. On the return day Wilson appeared before the grand jury, and in response to questions, when not under oath, stated that he answered the call of the United Wireless Telegraph Company and declined to answer further questions until he was sworn; and having been sworn, and being asked whether or not the company produced the letter press copy books called for, he filed a written statement in which, after describing the subpoena, he said:

"III. Said letter press copy books for the months of May and June, 1909, in said subpoena mentioned during said months of May and June, 1909, were kept regularly in my office as President of said corporation, and were regularly used by me and for the most part, if not entirely, by me only, and contained copies of my personal and other correspondence, as well as copies of the correspondence relating to the business and affairs of said corporation. For the greater part of the time during and since May and June, 1909, and all the time during the last month and

deemed guilty of a contempt of Court, and liable to the penalties of the law.

Witness, the Honorable John M. Harlan, Senior Associate Justice of the United States, at the Borough of Manhattan, City of New York, the 7th day of October, 1910.

HENRY WISE,

U.S. Allorney.

JOHN A. SHIELDS,

Clerk.

[blocks in formation]

more, said letter press copy books have been and still are in my possession, custody and control, and as against any other officer or employé of said corporation, or any other person, I have been entitled to such possession, custody and control. I did not secure and have not at any time held possession of said letter press copy books in anticipation that any subpoena for their production would be served upon me or said corporation, or for the purpose of evading any subpoena or other legal process which might be served upon me or said corporation."

He alleged that he was the "C. C. Wilson" mentioned in the subpoena as the one against whom the inquiry was directed, and described the pending indictments. He stated that the letter press copy books were essential to the preparation of his defense and that he was using them for that purpose; that he believed that the matters therein contained would tend to incriminate him; and that he "should not be compelled, directly or indirectly, to furnish or produce said letter press copy books as called for by said subpoena," nor to testify in regard to their contents, nor permit them to be used against him. He added that he had the books with him, but that he declined to deliver them to the grand jury, insisting that his refusal was in entire good faith.

The grand jury presented the matter to the court and Wilson was adjudged to be in contempt and was committed to the custody of the marshal "until he shall cease to obstruct and impede the United Wireless Telegraph Company from complying with the subpoena duces tecum attached to the above mentioned presentment, or otherwise purge himself from this contempt." This is the judgment which is the subject of review in the first case (No. 759).

Wilson then petitioned for a writ of habeas corpus alleging that the commitment was illegal for the reasons (1) that the court was without jurisdiction to entertain VOL. CCXXI-24

« PreviousContinue »