Heike v. United States

delivered the opinion of the court.

The petitioner was indicted for frauds on the revenue, and, in the sixth count, under Rev. Stat., § 5440, for a conspiracy to commit such frauds by effecting entries of raw sugars al less than their true weights by means of false written statements as to the same. -Rev. Stat., § 5445. Act of June 10, 1890, c. 407, §9, 26 Stat. 131 , 135. He pleaded in bar that, in 1909 and 1910, answering the Government’s subpoena, he had testified and produced documentary evidence before a Federal grand jury investigating alleged breaches of the Sherman Anti-trust Act, that the testimony and documents concerned the subject-

The investigation in which the petitioner testified concerned transactions of the American Sugar Refining Company. See Pennsylvania Sugar Refining Co. v. American Sugar Refining Co., 166 Fed. Rep. 254 . The petitioner was summoned to produce records of the American Sugar Refining Company and to testify. He appeared, produced the records and testified that he was the person to whom the subpoenas were addressed, secretary of the New York corporation and secretary and treasurer of the New Jersey corporation of the same name. He summed up what the books» produced showed as to the formation of the New York company. He identified his signature to four checks of the company in a transaction not in question here — the Kissel-Segal loan mentioned in United States v. Kissel, 218 U. S. 601 , 608. These checks were not used in the present case. He testified as to the ownership of the Havemeyer and Elder Refinery in Brooklyn. Finally he produced a table showing how many pounds of sugar were melted each year from 1887 to 1907 in each refinery, this table of course not purporting to represent the petitioner’s personal knowledge, but being a summary of reports furnished by the company’s different employes, and, the Government contends, volunteered by him.

The petitioner contended that, as soon as he had testified upon a matter under the Sherman Act, he had an amnesty' by the statute from liability for any and every offence that was connected with that matter in any degree, or, at least, every offence towards the discovery of which his testimony led up, even if it had no actual effect in bringing the discovery about. At times the argument seemed to suggest that any testimony, although not incriminating, if relevant to the later charge, brought the amnesty into play. In favor of the broadest construction of the immunity act, it is argued that when it was passed there was an imperious popular demand that the inside working of the trusts should be investigated, and that the people and Congress cared so much to secure' the necessary evidence that they were willing that some guilty persons should escape, as that reward was necessary to the end. The Government on the other hand maintains that the statute should be limited as nearly as may

Of course there is a clear distinction between an amnesty and the constitutional protection of a party from being compelled in a criminal case to be a witness against himself. Amendment V. But the obvious purpose of the statute is to make evidence available and compulsory that otherwise could not be got. We see no reason for supposing that the act offered a gratuity to crime. It should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned. We believe its policy to be the same as that of the earlier act of February 11, 1893, c. 83, 27 Stat. 443 , which read “No person shall be excused from attending and testifying,” (fee. “But no person shall be prosecuted,” &c., as now, thus showing the correlation between constitutional right and immunity by the form. That statute was passed because an earlier one, in the language of a late case, ‘was not coextensive with the constitutional privilege.’ American Lithographic Co. v. Werckmeister, 221 U. S. 603 , 611. Compare act of February 19, 1903, c. -708, § 3, 32 Stat. 847 , 848. To illustrate, we think it plain that merely testifying to his own name, although the fact is relevant to the present indictment as well as to the previous'investigation, was not enough to give the petitioner the benefit of the act. See 3 Wigmore, Evidence, § 2261.

There is no need to consider exactly how far the parallelism should be carried. It is to be noticed that the testimony most relied upon was the summary made from the books of the company by its servants, at the petitioner’s direction, and simply handed over by him; that apart from the statute the petitioner could not have prevented the production of the books or papers of the company, such as the summary was when made, or refused it if

The evidence did not concern any matter of the present charge. Not only was the general subject of the former investigation wholly different, but the specific things testified to had no connection with the facts now in proof much closer than that they all were dealings of the same sugar company. The frauds on the revenue were accomplished by a secret introduction of springs into some of the scales in such a Way as to diminish the apparent weight of some sugar imported from abroad. The table of meltings by the year had no bearing on the frauds, as it was not confined to the sugar fraudulently weighed and it does not appear how the number of pounds was made up. The mere fact that a part of the sugar embraced in the table was the sugar falsely- weighed did not make the table evidence concerning the frauds. The same consideration shows that it did not. tend to incriminate the witness. It neither led nor could have led to a discovery of his crime, tío the admission of his signature to certain checks, although it furnished a possible standard of the petitioner’s handwriting if there had

The other matters complained of would not have warranted the issue of the writ of certiorari and may be dealt with in few words. The petitioner was denied a separate trial, and this is alleged as error. But it does not appear that the discretion confided to the trial judge was abused. United States v. Ball, 163 U. S. 662 , 672. Again it is said that if the evidence proved the petitioner guilty of a conspiracy it proved him guilty of the substantive offence. It may be that there has been an abuse of indictment for conspiracy, as suggested by Judge Holt in United States v. Kissel, 173 Fed. Rep. 823 , 828, but it hardly is made clear to us that this is an instance.. At all events the liability for conspiracy is not taken away by its success — that is, by the accomplishment of the substantive offence at which the conspiracy aims. Brown v. Elliott, 225 U. S. 392 . Reg. v. Button, 11 Q. B. 929. Rex v. Spragg, 2 Burr. 993, 999.

An objection is urged to the admission of certain books, called the pink books, in evidence — they being the books in which were entered weights given by one set of weigh-ers — the city weighers — the weighers not having been called. These weights were the higher ones and were introduced as evidence of the discrepancy. They appear

Judgment affirmed.