Messrs. Edward J. Fox, Robert A. Stotz, and James W. Fox for plaintiff in error.
Assistant Attorney General Harr for defendant in error. [228 U.S. 457, 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. at L. 565, chap. 541, U. S. Comp. Stat. Supp. 1911, p. 1511], 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 Re Harris, 221 U.S. 274 , 55 L. ed. 732, 31 Sup. Ct. Rep. 557. 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 produciton. The transfer by bankruptcy is no different from a transfer by execution of a volume with a confession written on the fly leaf. 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 , 57 L. ed. --, 33 Sup. Ct. Rep. 158. 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 [228 U.S. 457, 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, 90 C. C. A.512, 164 Fed. 691.