(orally). This defendant is indicted with others for defrauding, and also for entering into a conspiracy to defraud, the government of the United States of its customs on certain sugars that have been imported by the American Sugar Refining Company. So far as this issue is concerned the defendant does not deny his guilt. He has filed a plea in bar, and by it brings upon the record a new issue whereby he asserts that there exist certain facts which, though he may be guilty of all that is charged in this indictment, he cannot be prosecuted or punished for. His attorneys in his presence claimed the opening and the affirmative of this issue, and to this the attorney for the government assented. The ordinary legal presumption of innocence has been by the defendant voluntarily withdrawn by this plea in bar. He has chosen this issue, and thereby takes the affirmative, and in so doing he must establish facts pleaded—the same having- been traversed by the counsel for the government—by a fair balance of evidence, or, in other words, by this plea the burden of proof rests upon the defendant.
*857It is claimed by counsel for the defendant that even this issue so volunteered by this plea should be sustained unless found to the contrary beyond a reasonable doubt. If such ivas to be held the law, men of means who were able to secure the services of competent and adroit attorneys could block the wheels of justice by successive pleas in bar and perhaps succeed upon some mere conjecture that the defendant said or did something before the grand jury whereby he may be shielded by the statute of immunity. Evidence beyond a reasonable doubt is only applicable to criminal cases wherein the defendant pleads not guilt}’. A plea of confession and avoidance removes the requirement of that degree of proof. State v. Ellsworth, 131 N. C. 773, 42 S. E. 699, 92 Am. St. Rep. 790; Com. v. Daley, 4 Gray (Mass.) 209.
This case presents the question whether or not the defendant fied before the grand jury to any transaction, matter, or thing in reference to the offenses alleged against him by this indictment. Is there a balance of evidence tending to show that his testimony before the grand jury, or the documents that he produced there, will probably become a fink in a chain of evidence to establish his guilt; not whether some ingenious mind may carve out of the mass of innocent facts, to which the inquiry before the grand jury related, some hidden fact whereby it is barely possible that the same would he used against him. If the court were to resort to that extreme, it would result in a dangerous practice, and thwart the ends of justice. Such is not the law governing the trial of an issue raised by a jilea in liar. The true rule is: Is it probable, from the evidence adduced, that the defendant testified to some matter or thing for or on account of which he now stands changed as a criminal? United States v. Burr, 25 Fed. Cas. 1 (No. 14,692); Brown v. Walker, 161 U. S. 591, 599, 600, 16 Sup. Ct. 644, 40 L. Ed. 819; Ex parte Irvine (C. C.) 74 Fed. 956; R. v. Boyes, 1 B. & S. 331. It is claimed here that the mere statement of the accused before the grand jury that he was an officer (the secretary) of the American Sugar Refining Comjiany is a fact that affords him immunity. Can it be that Congress intended by this immunity statute to afford a shield to a man who has committed a crime, by merely swear-ring to something that is already notorious, and where neither civil nor criminal justice can be in the least advanced by the disclosure? Such a construction to my mind would he a perversion of justice. See Rudolph v. State, 128 Wis. 222, 107 N. W. 466, 116 Am. St. Rep. 32. The thing mainly relied on, however, by counsel for the defendant is that he produced documentary evidence tending to show the amount of sugar melted at the Havemeyer and Elder docks, those being docks at which the fraud is alleged to have been perpetrated. This seems to have been a voluntary act on his part unless it was compulsory by virtue of the subjicena. The subject-matter of investigation by that grand jury before which the defendant was summoned was an alleged violation of the Sherman act. No claim was there made that the government was defrauded; the claim there was that the conduct of this sugar company was such that the rights of the people were affected by the restraint of trade, and the request of the defendant was that he procure from the books of the company the amount of sugar melted *858in all of its different refineries, which included, of course, the Havemeyer and Elder Refinery, and it bore upon the question as to whether this sugar company as a corporation was reaching out and laying its hands upon other companies in restraint of trade; or, in other words, had it brought into its own grasp the sugar refining business of this country to the detriment of the people. The defendant testifies on this trial that no question was put to him or any request made of him. whereby his guilt of the charges set forth in this indictment was even thought of by him. If he did not think of it, how can it be conceived that the attorney for the government thought of it? Besides, the defendant testified that he had no knowledge of the quantity of sugar actually melted in any of the refineries of the sugar company until his clerks made the computation requested. ' He does not even swear that they made a correct one. Is it fairly probable to assume from this evidence that the making of that schedule about which the defendant knew nothing—purely the result of the examination of the books of the corporation—was the furnishing of evidence, or the source of evidence, to convict him of this charge of fraud and conspiracy? The statute simply protects the defendant from furnishing evidence against himself, not others. See Brown v. Walker, 161 U. S. 591, 600, 16 Sup. Ct. 644, 40 L. Ed. 819.
Again, a witness testifying to documentary evidence found in the records of a corporation, if, perchance, an inquiry were made that may furnish evidence of his guilt, he should then assert his immunity. An officer of a corporation has testimonial powers to extract from its records a mass of facts, usually innocent, and which relate only to his administrative duties. The inquiry of the defendant before the grand jury was relevant to general facts apparent upon the books of the company and facts of which the company invited investigation. The defendant knew prior to the time of his testimony that the president of his company had written to the Secretary and Treasurer of the United States and to prosecuting attorneys inviting the fullest and freest examination of the books of the company. The defendant, as secretary of the company, had promulgated to the public through the columns of the newspapers the willingness to furnish the government with any fact that the books of the company might reveal. Under such a state of facts, if that investigation before the grand jury by the government, following the invitation of the officers of the company, revealed any material fact that might incriminate this defendant, he should, have asserted it and thus warned the attorney, so that he could submit it to the court, so that the court could exercise his discretion whether to proceed further, grant the immunity, or stop short of it. See Wigmore on Evidence, § 2281a, p. 241. The immunity provided by this statute was intended to afford an investigation without its being interrupted by the constitutional privilege of silence, or, in other words, under the Constitution, as under the common law, a witness is not obliged to incriminate himself. But to avail himself of that privilege he must ordinarily assert it. United States v. Kimball (C. C.) 117 Fed. 156, 163; State v. Murphy, 128 Wis. 201, 107 N. W. 470; 5 Wigmore on Evidence, § 2281a. Whether the immunity statute flows out to a wit*859ness testifying depends on circumstances. This statute of immunity must be administered with common sense; on the one hand, some questions are of such character that the witness would understand naturally and inferentially that he would he immune if he answered, and thus proceed to answer without asserting liis right, while under other circumstances it would he his duty to assert it if he intended to rely on it. The administration of this statute involves the same application of common sense that the English court refers to in the Boyes Case (1 B. & S. 331), in language approved hv the Supreme Court:
‘•To entitle a party called as a witness lo tlie privilege of silence, the court must see from the circumstances of the case and the nature of the evidence which the witness is called upon to give that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. * * * The witness’ danger being made to appear, great latitude should' be allowed to him.” Brown v. Walker, 161 U. S. 591, 599, 16 Sup. Ct. 644, 618, 40 L. Ed. 819.
Chief Justice Marshall in the Burr Case uses this language:
“When two principles come in conflict with each other the court must give them a reasonable construction so as to preserve them both to a reasonable extent. The principle which entitles the United States to the testimony of every citizen and tlie principle by which every witness is privileged not to acense himself can neither of them be entirely disregarded.” 25 Fed. Cas., at pages 39. 40.
Applying that principle to the case at bar, the defendant has failed to maintain his plea. Neither he nor the government attorney, so far as appears here, had the slightest idea that this defendant in liis evidence before the grand j ary revealed a single fact that could he made use of in establishing his guilt of any matter or thing to which this indictment relates. The need of vigorous investigation and punishment of offenders of the law is at least as apparent to-day as it ever was, and it is equally apparent that Congress has intended to clothe the department of justice with full power to enforce tlie mandates of the law, and to cover the guilty with the mantle of immunity only when essential to ascertain material facts. Immunity or the constitutional privilege for which it is intended as substitute should not he enjoyed beyond a reasonable protection. It relates not to the innocent, hut to the guilty, or him who fears prosecution. It is argued that to require the guilty to assert immunity or the constitutional privilege is embarrassing, and might result in the necessity of an astute lawyer to advise when and under what circumstances to assert his rights. That may he so. The circumstances may be such that tlie court should hold that the witness is entitled to immunity even though not asserted or claimed. No circumstances of that sort, however, are shown here. The very contrary appears.
In this connection, tlie question of good or had faith on the part of the prosecuting officers is important. Not only is there a total failure to show any bad faith, hut quite the contrary appears from the evidence. There is no evidence that the defendant revealed any fact that will probably be necessary in establishing any guilt that cannot be obtained from other sources, and was not known, or in the possession of the government, except possibly as to the amount of sugar melted by *860the sugar company in its various refineries, and as to these melting figures the defendant testified at this trial that he knew absolutely nothing. It is perfectly clear that there was no attempt to extract from this defendant any fact to be used against him on any criminal charge of fraud.
Neither side asked that this case be submitted to the jury. There is no dispute as to the facts, and upon the undisputed facts the defendant has wholly failed to establish the allegations of his plea, and there should therefore be a verdict ordered to that effect.
For other casos sec samo topic & § nu.mbek in Dee. & Am. Digs. 1907 to date, & Eep’r Indexes
For other cases see same topic & § number in Dee. & Am. Digs. 1907 to date, & RepT Indexes