Ensign v. Commonwealth of Pennsylvania/Opinion of the Court
There are two writs of error, but a single record. The plaintiffs in error were jointly indicted in the court of quarter sessions of Erie county, Pennsylvania, under an act of May 9, 1889 (P. L. 1889, p. 145), 'relating to the receiving of deposits by insolvent bankers, etc., defining the offense, and providing a punishment therefor.' It appears that they were engaged together in business as private bankers in the borough of North East, Pennsylvania, for a long time prior to February 12, 1908; that on that day they received from the prosecuting witness a deposit of $1,000; that on the 15th of February they closed their banking house, and on the 17th made an assignment for the benefit of their creditors; that they were shortly thereafter thrown into involuntary bankruptcy, and schedules were filed by them in the bankruptcy proceeding. The receipt of the deposit of February 12th was made the basisof the indictment.

Upon the trial, the commonwealth offered in evidence, and the court admitted, against the objection of the defendants, the schedules filed by them in the bankruptcy proceeding, and the testimony of an expert accountant, based upon an examination of their banking books, which they had turned over to the trustee. The trial court, and, on successive appeals, the superior court and the supreme court of Pennsylvania (40 Pa. Super. Ct. 157, 163; 228 Pa. 400, 77 Atl. 657), overruled the contentions of the plaintiffs in error that their rights under the Constitution and laws of the United States were infringed by the admission of the evidence referred to, and so they bring the case here.

Article 5 of Amendments to the Federal Constitution is invoked, which provides (inter alia)-'No person . . . shall be compelled in any criminal case to be a witness against himself.' But, as has been often reiterated, this amendment is not obligatory upon the governments of the several states or their judicial establishments, and regulates the procedure of the Federal courts only. Barron v. Baltimore, 7 Pet. 243, 8 L. ed. 672; Spies v. Illinois, 123 U.S. 131, 166, 31 L. ed. 80, 86, 8 Sup. Ct. Rep. 21, 22; Brown v. New Jersey, 175 U.S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep. 77; Barrington v. Missouri, 205 U.S. 493, 51 L. ed. 890, 27 Sup. Ct. Rep. 582; Twining v. New Jersey, 211 U.S. 78, 93, 53 L. ed. 97, 103, 29 Sup. Ct. Rep. 14.

We are referred to a similar prohibition in art. I., § 9, of the Constitution of Pennsylvania; but, even if the trial of the plaintiffs in error proceeded in disregard of this provision, no Federal right was thereby infringed.

The only debatable question is that which is based upon the provisions of § 7 of the Federal bankruptcy act of July 1, 1898 (chap. 541, § 7; 30 Stat. at L. 544, 548, U.S.C.omp. Stat. 1901, pp. 3418, 3424), which reads as follows:

'Duties of bankrupts.-a. The bankrupt shall (1) attend the first meeting of his creditors, if directed by the court or a judge thereof to do so, and the hearing upon his application for a discharge, if filed; (2) comply with all lawful orders of the court; (3) examine the correctness of all proofs of claims filed against his estate; (4) execute and deliver such papers as shall be ordered by the court; (5) execute to his trustee transfers of all his property in foreign countries; (6) immediately inform his trustee of any attempt, by his creditors or other persons, to evade the provisions of this act, coming to his knowledge; (7) in case of any person having to his knowledge proved a false claim against his estate, disclose that fact immediately to his trustee; (8) prepare, make oath to, and file in the court within ten days unless further time is granted, after the adjudication, if any involuntary bankrupt, and with the petition, if a voluntary bankrupt, a schedule of his property, showing the amount and kind of property, the location thereof, its money value in detail, and a list of his creditors, showing their residences, if known; if unknown, that fact to be stated, the amounts due each of them, the consideration thereof, the security held by them, if any, and a claim for such exemptions as he may be entitled to, all in triplicate, one copy of each for the clerk, one for the referee, and one for the trustee; and (9) when present at the first meeting of his creditors, and at such other times as the court shall order, submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate; but no testimony given by him shall be offered in evidence against him in any criminal proceeding: Provided, however, that he shall not be required to attend a meeting of his creditors, or at or for an examination at a place more than one hundred and fifty miles distant from his home or principal place of business, or to examine claims except when presented to him, unless ordered by the court, or a judge thereof, for cause shown, and the bankrupt shall be paid his actual expenses from the estate when examined or required to attend at any place other than the city, town, or village of his residence.'

The reliance of the plaintiffs in error, of course, is upon that part of clause 9 of the section which declares-'but no testimony given by him shall be offered in evidence against him in any criminal proceeding.' It is insisted that, in accordance with the spirit of the 5th Amendment, this should be construed as applying to the schedule required to be prepared, sworn to, and filed by the bankrupt under the provisions of the 8th clause. But as a matter of mere interpretation, we deem it clear that it is only the testimony given upon the examination of the bankrupt under clause 9 that is prohibited from being offered in evidence against him in a criminal proceeding. The schedule referred to in the 8th clause, and the oath of the bankrupt verifying it, are to be 'filed in court,' and, therefore, are, of course, to be in writing. The word 'testimony' more properly refers to oral evidence. It was reasonable for Congress to make a distinction between the schedule, which may presumably be prepared at leisure and scrutinized by the bankrupt with care before he verifies it, and the testimony that he is to give when he submits to an examination at a meeting of creditors or at other times pursuant to the order of the court,-a proceeding more or less unfriendly and inquisitorial, as well as summary, and in which it may be presumed that even an honest bankrupt might, through confusion or want of caution, be betrayed into making admissions that he would not deliberately make. Full effect can be given to the clause, 'but no testimony given by him shall be offered in evidence against him in any criminal proceeding,' by confining it to the testimony given under clause 9, to which the words in question are immediately subjoined. And we think that proper interpretation requires their effect to be thus limited.

We are referred to Johnson v. United States, 18 L.R.A.(N.S.) 1194, 89 C. C. A. 508; 163 Fed. 30, and Cohen v. United States, 96 C. C. A. 35, 170 Fed. 715. But these were both prosecutions in the Federal courts on indictments for fraudulently concealing property belonging to the bankrupt's estate; and the decision in each case was rested upon § 860, Rev. Stat. (U.S.C.omp. Stat. 1901, p. 661), which declares that 'no pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture; provided, that this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.' This section (since repealed by act of May 7, 1910, chap. 216, 36 Stat. at L. 352, U.S.C.omp. Stat. Supp. 1911, p. 272) was in force at the time of the trial of plaintiffs in error; but by its own terms it is limited to criminal proceedings 'in any court of the United States,' and constitutes no limitation upon the procedure of the state courts.

For the reasons given, it seems to us clear that the plaintiffs in error were not entitled to have the bankruptcy schedules excluded from evidence, because those schedules were not within the description of 'testimony' in the clause quoted from § 7 of the bankruptcy act.

And for like reasons, the evidence showing the results of an expert examination of the books of the bankers was also admissible.

This conclusion renders it unnecessary for us to consider whether the prohibition with which we have dealt, that 'no testimony given by him shall be offered in evidence against him in any criminal proceeding,' is not limited to criminal proceedings in the Federal courts; and upon this question we express no opinion.

Judgments affirmed. 

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