(dissenting).
With the conclusion here reached by the majority, I dissent. With so much of the opinion as concerns the procedure complained of,- and the admission of certain evidence, I am in agreement. I do not feel, however, that the evidence warranted the Trial Judge in holding the defendant in contempt of court.
The question here posed, while seemingly a simple one, has deeper implications and greater significance beyond the immediate case, for as a precedent it will broaden the field of judicial power in criminal contempt cases beyond its present limitations, and in so doing is portentous of a growing tendency through ■ attrition to wear away the ancient instrument fact finding — trial by jury.
It will serve no useful purpose to review the history of contempt cases in either England or this country. The power of committing individuals for criminal contempt in England, though rather broad in its beginning, became gradually narrower and more confining. Its exercise is best expressed by the great Master of the Rolls of the nineteenth century, Sir George Jes-sel, whose judgments have done so much to build up the fabric of the English law.1
In this country judicial authority to punish for contempts does not exempt it from constitutional limitations, since its only purpose is to secure it from obstruc*631tion in the performance of its duties, to the end that the means appropriate for the preservation and enforcement of the Constitution may be secured. Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186.
The power of the court to punish for contempt in “[his] presence, or so near thereto as to obstruct the administration of justice” extends to witnesses before a Grand Jury. O’Connell v. United States, 2 Cir., 40 F.2d 201; United States v. McGovern, 2 Cir., 60 F.2d 880.
The function of a reviewing court in a case of this kind is precisely the same as in other cases of a criminal nature, that is, to review questions of law. This includes, of course, the question as to whether there is evidence which supports or tends to support the judgment of the Trial Court. United States v. Brown, 7 Cir., 116 F.2d 455, 457.
Does the evidence in this case support the findings of the Trial Court? I think not. I agree with the findings of the majority that the defendant was not contumacious or obstreperous, that he did not refuse to answer questions, and further that his testimony cannot fairly be characterized as evasive in failing to give direct answers to the questions asked him, nor can it be said that his answers were not responsive. That he did not tell the truth in many instances, I am convinced. However, it is now well settled that a mere act of perjury on the part of a witness does not in and of itself, without something more, amount to contempt of court. Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656, 11 A.L.R. 333. The question in that case was whether the power to punish for contempt extended to every case where a court was of the opinion that a witness was committing perjury. The court there said, supra, 249 U.S. at page 383, 39 S.Ct. at page 339: “An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rests. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted — a principle which, applied to the subject in hand, exacts that in order to punish perjury in the presence of the court as a contempt there must be added to the essential elements of perjury under the general law the further element of obstruction to the court in the performance of its duty. As illustrative of this, see United States v. Appel, D.C., 211 F. 495.”
It can -be seen from this that it is not every obstruction to judicial power which is punishable by contempt, for perjury, which is the telling of an untruth, under oath, with respect to any material matter, 18 U.S.C.A. § 231, of necessity must be an obstruction in some degree, since by its very definition it is the telling of a falsehood with respect to a material issue involved in the case. What additional element must be present then besides perjury in order to hold a witness in contempt of court? It seems to me, from an analysis of the cases, that the answers to the question or questions propounded to the witness must have a tendency to block the inquiry or to hinder the power and duty of the court in the performance of their functions. That this does not admit of precise definition is obvious. However, precedent has pointed up the essential requisites. It seems to me the answers to the questions by the witness must have a tendency to mislead the court with respect to a material issue, by artful attempts at evasion; or a stalling of the court’s inquiry by a palpable failing of memory concerning events of importance through repeated resort to “I do not remember”; or by destruction by the witness of books and papers material to the issue; or by conduct which is obstreperous or contumacious; or by answers no less, which though responsive, are yet wily and ambiguous and which by innuendo or indirection tend to shunt the focus of the inquiry. Clearly, it seems to me, none of these factors obtain in the instant case.
Some reliance is had by the majority on the fact that the witness could not tell what six checks in number were for, which he had signed as trustee in the reorganization of the Central Forging Company of Cata-wissa, though he testified to signing many checks, as many as one hundred fifty at a time. Wherein these answers could be said to tend to block the court’s inquiry, or obstruct the functions of the court in its investigation, I cannot find, since the answers were not contumacious nor evasive nor artfully or designedly made, which could in any way mislead or have a tendency to forestall the inquiry and at most, if untrue, amount only to perjury.
*632In United States v. Appel, supra, the illustration given by the Supreme Court in the Hudgings case, supra, the defendant was held in contempt for what the court stated was “obviously a sham”. In that instance, the witness testified before a Commissioner that he could not remember what he had done with large sums of money or how he had spent them, which he had drawn from a bank account, only four or five days before.
In O’Connell v. United States, supra, the witness was in attendance at a Grand Jury investigation covering the commission of a federal offense in connection with the “Albany Baseball Pool”. Here, the defendant was held in contempt of court for plainly “holding back what he knew of the extent and duration of his acquaintance with some of the persons in connection with the pool whom he admitted knowing,” and in “his refusal to state his best recollection” which made it impossible to pursue the inquiry further into matters whose relevancy might have clearly appeared. In United States v. McGovern, supra, the witness was held in contempt of court upon his failure to disclose what uses he had made of $380,000 which he withdrew in cash and concerning which he made a claim of privilege and which during the course of the testimony turned out to be a sham and where his answers were generally tantamount to palpable concealment. In United States v. Brown, 7 Cir., 116 F.2d 455, the defendant was held in contempt of court when he testified that records material to the investigation had been burnt by him, when the evidence showed that they were later removed to a different place. In United States v. Karns, D.C., 27 F.2d 453, the defendant was held in contempt of court because he presented false and fraudulent instruments in evidence, and for corruptly testifying falsely, with respect to their authenticity, which was directly pertinent to the issues in the case. In Re Meckley, 3 Cir., 137 F.2d 310, the presentment charged the defendant with giving answers to the questions which were false and subterfuges ; “in blocking the search for truth by answering with the first preposterous fancy which he chose to put forward; in contumaciously parrying with the examiner and Grand Jurors.” The court in this instance found that the conduct set forth in the presentment was true and that this amounted to contumacy. In Clark v. United States, 289 U.S. 1, 11, 53 S.Ct. 465, 77 L.Ed. 993 the witness was held in contempt of court for falsely stating her past employment when called upon in her voir dire examination in which she deliberately concealed her employment by the defendant. Here the court stated, supra, 289 U.S. at page 11, 53 S.Ct. at page 468: “The petitioner is not condemned for concealment, though concealment has been proved. She is not condemned for false swearing, though false swearing has been proved. She is condemned for -that she made use of false swearing and concealment as the means whereby to accomplish her acceptance as a juror, and under cover of that relation to obstruct the course of justice.” Throughout these cases I think it can be seen that in every instance the answers of the witness held in contempt amounted to a hindrance to the court in the pursuit of its inquiry.
In United States v. Arbuckle, D.C., 48 F. Supp. 537, a case oddly enough relied on by the majority, the court refused to hold a witness in contempt where the facts, it seems to me, disclose a far stronger case than the instant one. In this case the witness admitted at the hearing on the contempt charge that his testimony given during the trial of an indictment for embezzlement had been false and untruthful, and that this testimony tended to establish the innocence of the defendant, as well as strongly suggest criminal guilt of a prosecution witness. In pointing out that there was not necessarily an inherent obstructive effect to false swearing, the court says, supra, 48 F.Supp. at page 538: “What, then, is perjury having the ‘obstructive effect’ to which the Supreme Court referrecf? (Reference is made to Ex Parte Hudgings, supra.) A study of the decided cases which bear on this point seems to establish that it is ‘perjury which blocks the inquiry.’ This is the definition given by Hand, J., in United States v. Appel, D. C. 211 F. 495, a case referred to by the Supreme Court, in its Hudgings’ decision, as illustrating its view. If false testimony given in a case results in a defiance of the Court or in frustration of its right to obtain testimony, then the witness in legal effect is contumacious, he is a contemnor, as well as a perjurer, and may be punished for contempt. But if the witness fully gives testimony, and in so' doing testifies, falsely, not in order to prevent the inquiry, but only in order to deceive, there is no-contumacy, no blocking of the inquiry, and. *633the remedy is solely by indictment for perjury and trial by jury.” It seems to me that a careful study of the testimony given before the Grand Jury in the instant case in nowise measures up to the conduct of the defendants in any of the cases herein cited. He was not contumacious, he was not obstreperous; his answers were responsive, and while as I have indicated, I do not feel he was telling the truth at all times, I cannot possibly see where any of his answers, aside from being possibly per-jurious, tended in anywise to block the inquiry. At most his guilt or innocence should be decided by a trial upon indictment for perjury.
The use of this drastic power wherein a judge sits as accuser, trier of the fact, and dispenser of punishment should only be exercised when the obstruction to the performance of judicial duty is clearly shown. Ex parte Hudgings, supra. I feel it to be of prime importance, no more and no less, that witnesses called in any inquiry should have ease and freedom of mind in testifying, as well, that they tell the truth and in nowise hinder the seeking of truth. It is in the proper maintenance of this ..balance that lies the security of our courts.
Judgment should be reversed.
In re: Clements v. Erlanger, 46 L.J.(N.S.) (Eq.) 375, 383 (1877): “Therefore it seems to me that this jurisdiction of committing for contempt being practi-eally unlimited should be most jealously and carefully watched, and exercised, if I may say so, with tile greatest reluctance and the greatest anxiety on the part of Judges to see whether there is no other mode which is not open to the object of arbitrariness and which can be brought to bear upon the subject. I say that a Judge should be most careful to see that the cause cannot bo fairly prosecuted to a hearing unless this extreme mode of dealing with persons brought before him on accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men’s rights, that is, if no other pertinent remedy can be found. * * * ”