Courts proceed step by step.
Matter of Harris,
221 U. S. 274,
established simply that the transfer of books of the bankrupt to
the trustee could be required, and left undetermined the question
of use to which the books could be put.
A party is privileged from producing his books in a prosecution
against himself, but is not privileged from their production.
A criminal cannot protect himself by getting the legal title to
corporate books.
Wheeler v. United States, 226 U.
S. 478.
The production of a documentary confession by a third person,
into whose hands it has come
alio intuitu, does not compel
the witness to be a witness against himself in violation of the
Fifth Amendment.
On appeal from a conviction, where there is evidence tending to
support the finding and no certificate that all the evidence is in
the record, this Court is not warranted in declaring, as matter of
law, that the government did not make out a case.
The facts are stated in the opinion.
Page 228 U. S. 458
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an indictment for concealing money from the defendant's
trustee in bankruptcy. The defendant was convicted and sentenced
subject to exceptions which raised in different forms the questions
whether his books properly were admitted against him, and whether
the evidence warranted the verdict.
On the first point, the facts are simply that the books had been
transferred to the trustee in accordance with § 70 of the
Bankruptcy Act of July 1, 1898, 30 Stat. 565, c. 541, and were
produced before the grand jury and before the petit jury at the
trial. That the transfer lawfully could be required is established
by
In re Harris, 221 U. S. 274. But
the defendant lays hold of an expression in that case, "the
properly careful provision to protect him from use of the books in
aid of prosecution," as an intimation that the books could not be
put to such a use.
Courts proceed step by step. And we now have to consider whether
the cautious statement in the former case marked the limit of the
law in a case where no rights, if there were any, were saved when
the books were transferred. The answer was implied in that
decision. A party is privileged from producing the evidence, but
not from its production. The transfer by bankruptcy is no different
from a transfer by execution of a volume with a confession written
on the flyleaf. It is held that a criminal cannot protect himself
by getting the legal title to corporate books.
Wheeler v.
United States, 226 U. S. 478. But
the converse proposition is by no means true -- that he may keep
the protection from the introduction of documentary evidence that
he would have had while he retained it, after the title and
possession have gone to someone else.
It is true that the transfer of the books may have been
Page 228 U. S. 459
against the defendant's will, but it is compelled by the law as
a necessary incident to the distribution of his property, not in
order to obtain criminal evidence against him. Of course, a man
cannot protect his property from being used to pay his debts by
attaching to it a disclosure of crime. If the documentary
confession comes to a third hand
alio intuitu, as this
did, the use of it in court does not compel the defendant to be a
witness against himself.
As to the question of evidence, it is enough to say that there
was evidence tending, as far as it went, to show that the defendant
foresaw what was coming and attempted to save something from the
wreck. There is no certificate that all the evidence is before us,
and we should not be warranted in declaring as matter of law that
the government did not make out a case.
See Seigel v.
Cartel, 164 F. 691.
Judgment affirmed.
