(dissenting in part).
I agree with my brothers except as to the conviction of Smith upon the indictment, which I think ought also to be reversed. The language of the act1 is that no one shall be prosecuted “on account of any transaction * * * concerning which he may testify * * * in obedience to * * * subpoena.” There can be no debate that Smith was questioned and testified “concerning” the prices at which the company sold; and, as the indictment was for conspiring to sell at higher prices than the regulations allowed, his testimony inevitably “concerned” the “transactions” charged in the indictment. On the other hand, not only did his answers not support *864the charge, but they at least tended to refute it: I shall assume that they did refute it. Laying aside the “waiver” for the moment, we should have to hold, in order to affirm the conviction, that, when it has been ascertained that á witness’s answers to questions “concerning” a “transaction," which may or may not be criminal, will not incriminate him — -a fortiori when they exculpate him — he must answer. It is true that this is in accord with the following passage in Wigmore,2 although he was only giving the reasons why such statutes do not give immunity to a witness who answers falsely: “The privilege, by hypothesis would have been violated only if the witness had truly confessed his crime, but if he denies it and falsely exonerates himself, he has confessed no fact ‘against himself' " and "his privilege has not been infringed by the actual answer.” Apparently there are no decisions supporting this statement, and I cannot agree with it. The privilege, if it is to exist at all, must include all questions which are relevant to the witness’s guilt, regardless of how he will answer them. Were it otherwise, the privilege itself would be conditional upon the answers, and the witness, in order to assert it, would be obliged to disclose whether he would deny or admit any guilt. It is precisely to protect him from .that predicament that the privilege exists; indeed, the result would be to compel him, if he was in fact guilty, either to confess his guilt, or to add perjury to it.
I do not understand that we are committing ourselves to this position; on the contrary we are expressly refusing to do so; but this we do only because we hold that the “volunteered statement” included the “transactions” defined as crimes in the indictment. In doing so are we not giving to the only relevant passage in the “statement” a wider scope than is justified? All that it contained, touching the charge in the indictment, is the following passage: “When and if I had a surplus, I would notify them and ask them if they had anything immediately on hand as I am overstocked, at which time they told me they had not and to dispose of it.” That did indeed allow the use of any of Smith’s earlier or later testimony to the same effect, but as a “waiver” it went no further. The “statement” said nothing “concerning” the prices at which the “surplus” was sold, and Smith had already been questioned about those and had answered. I quote his testimony in the margin.3 It seems to me that he did not “waive” his immunity by “volunteering” that all he sold was “surplus”; for a “waiver" must extend to all the essentials of the charge from whose prosecution the act gives him immunity. The sales price was the very kernal of that charge.
§ 40, Title 49, U.S.C.
Wigmore on Evidence, § 2282(c).
“Question: But you do state the fact to be that sales of materials and fabrics were made by Daisart Sportswear Inc.? Answer: Correct.
“Question: Can you tell me how Daisart Sportswear Inc., arrived at its selling price with respect to the items that it sold? Answer: Since it was surplus, it was sold at the price billed to me plus freight and haulage and less discount allowed to me.
“Question: In other words, Daisart Sportswear Inc., sold at cost plus freight less any discounts, cash or otherwise, received by Daisart Sportswear Inc.? Answer: Correct.
“Question: For the year 1945, what was the dollar’ volume of sales of fabrics and materials made by Daisart Sportswear Inc.? Answer: I have no knowledge of that. Without records I cannot tell.
“Question: Are there such records available? Answer: There are not to my knowledge.
“Question: Can you tell the names of the persons or companies who purchased fabrics or piece goods or materials from Daisart Sportswear Inc.? Answer: Off hand I don’t know. Not without consulting records.
“Question: You don’t remember the names? Answer: Not off hand. I could name some, but I would rather not answer.”