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THE GREEN BAG

CRIMINAL LAW (Immunity to one Furnish ing Evidence or Information — Beef Trust Case). U. S. Dist. Ct., Ill. — A case which has enjoyed an inordinate newspaper notoriety, but which we do not remember having seen reviewed from a legal standpoint, is the Chicago Beef Trust case, officially known as United States v. Armour & Co., 142 Federal Reporter 808, in which Judge Hum phrey held that the officers and representatives of various packing concerns were immune from prosecution because of having given testimony and produced documentary evidence before the commissioner of corporations. A brief digest of the statutes upon which the decision rests is necessary to a comprehension of its principles. Act February 14, 1903, c. 552 (U. S. Comp. St. Supp. 1905, p. 68) creating the department of commerce and labor, by section 6, requires the commissioner of corporations to investigate all corporations and combinations engaged in inter state or foreign commerce, and provides that all the requirements, obligations, liabilities, and im munities imposed or conferred by "An act to regulate commerce," or by " An act in relation to testimony before the Interstate Commerce Commission " shall also apply to all persons who may be subpoenaed to testify as witnesses, or to produce documentary evidence in pursuance of the authority conferred by this section. The act last mentioned (U. S. Comp. St. 1901^.3173), which is supplementary to the Interstate Com merce Act, provides that no person shall be prose cuted or subjected to any penalty or forfeiture for, or on account of any transaction, matter, or thing, concerning which he may testify or produce evidence, documentary or otherwise, before the commission, or in obedience to its subpoena, or in any such case or proceeding. Appropriation Act, February 25, 1903 (U. S. Comp. St. Supp. 1903, p. 602) making provision for the enforce ment of the interstate commerce and anti-trust laws, contains a similar immunity provision relating to persons giving testimony or producing evidence in any proceeding, suit, or prosecution under said acts. The commissioner of corporations, while acting tinder the authority and by the direction of a resolution of the House of Representatives, was directed to investigate the so-called beef trust, and while proceeding thereunder, certain persons, by his request, but without being subpoenaed or sworn, furnished documentary evidence on which he based his report. Afterwards these persons were accused of violations of the anti-trust law and by appropriate plea in Bar raised the question of their immunity from prosecution under the statu tory "provisions mentioned. Looking to the

purpose which prompted the enactment of the statutes creating the office of commissioner of corporations, the judge draws the conclusion that the purpose of the act was to enable Congress to acquire such information concerning corpora tions and their working methods as would enable it to devise efficient measures for their regulation, and that while the punishment of offenders might have been a secondary purpose, it was, nevertheless, not a primary one. The statutes giving immunity from prosecution are, as pointed out, substitutes for the privilege contained in the constitutional provision, that no person shall be compelled in any criminal case to be a witness against himself. This privilege cannot be taken away without giving the citizen, by way of im munity, something as broad and valuable as the privilege thus destroyed. The immunity law is, however, the court says, broader than the privi lege given by the fifth amendment. The con stitutional privilege only permits a refusal to answer while the immunity statutes wipes out the offense about which the witness might have refused to answer. The privilege permits a refusal only as to incriminating evidence, while the act gives immunity for evidence of or con cerning the matter covered by the indictment, and the evidence need not be self-incriminating. The privilege must be personally claimed by the witness at the time, while the immunity flows to the witness by action of law and without any claim on his part. The argument that the testi mony was not given under compulsion because no subpoena was issued and no oath required is met by the statement that as the only object of a subpoena is to secure the attendance of the wit nesses and as the witnesses on request of the corporation commissioner voluntarily attended without any subpoena, the fact that none was issued did not affect their right to claim immun ity. As supportihg these views, the court cites Goodpaster v. Voris, 8 Iowa, 334; Leckie u. Scott. 10 La. 412; Hunton v. H. & H. Co., 76 N. W. 1041, and Starr v. Mayer, 60 Ga. 346. It is also pointed out that documentary evidence was furnished and that books and documents prove themselves when produced for the purpose of showing com missions against interest and that no oath on the part of the party producing them is necessary to give them evidentiary force. So the court con cludes that the defendants gave, under legal compulsion, evidence concerning the matters for which they were indicted and that they were, therefore, entitled to immunity. INTERSTATE COMMERCE (Regulation by State — Power of Corporation Commission'1 . U. S.