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Amend. 5.-Rights of Persons-Double Jeopardy.

Philippine courts.-For cases under the Philippine bill of rights, see

Diaz v. U. S., 223 U. S. 442.

Gavieres v. U. S., 220 U. S. 338.
Flemister v. U. S., 207 U. S. 372.

Grafton v. U. S., 206 U. S. 333.

The Bar Must Be Pleaded

A former conviction must be pleaded.

U. S. v. Wilson, 7 Pet. 159.

Application of Clause to Offenses

This constitutional guaranty by a liberal construction is held to apply to misdemeanors as well as to treason and felony.

Berkowitz v. U. S., 93 Fed. 452.

Where an issue raised as to the existence of the act or fact denounced has been tried in a criminal proceeding, instituted by the United States, and a judgment of acquittal has been rendered in favor of a particular person, that judgment is conclusive in favor of such person, on the subsequent trial of a suit in rem by the United States, where, as against him, the existence of the same act or fact is the matter in issue, as a cause for the forfeiture of the property prosecuted in such suit in rem.

Coffey v. U. S., 116 U. S. 443. For a discussion of this case see U.
S. v. Three Copper Stills, 47 Fed. 499.

A plea of former acquittal must be upon a prosecution for the same identical offense.

Burton v. U. S., 202 U. S. 344.

The test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes.

Morgan v. Devine, 237 U. S. 632.

Carter v. McClaughry, 183 U. S. 365.

The usual test of the identity of the offenses may be thus expressed: Unless the first indictment were such as the prisoner might have been convicted upon proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second. Where a person is convicted of a crime which has several incidents included in it, a second trial for one of those incidents is putting him twice in jeopardy.

Berkowitz v. U. S., 93 Fed. 452.

Nielsen, Petitioner, 131 U. S. 188.

When the indictment is for a distinct offense from that on which the verdict in the previous trial was found, a plea of former jeopardy can not be sustained.

U. S. v. Randenbush, 8 Pet. 289.

The power to punish for contempt remains in each House of Congress, and it can not be held that a statute is invalid be

Amend. 5.-Rights of Persons-Double Jeopardy.

cause it provides that contumacy in a witness called to testify in a matter properly under consideration by either House, and deliberately refusing to answer questions pertinent thereto, shall be a misdemeanor against the United States.

In re Chapman, 166 U. S. 672.

Matters of Pleading and Procedure

The ignoring of an indictment by one grand jury is no bar to a subsequent grand jury investigating the charge and finding an indictment for the same offense.

U. S. v. Martin, 50 Fed. 918.

A general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing.

U. S. v. Ball, 163 U. S. 662.

Kepner v. U. S., 195 U. S. 130.

Where the court, on entertaining a demurrer to the indictment after a plea of not guilty had been entertained and not withdrawn, dismissed the jury in order to enable the jury to be again arraigned and plead, the accused was not twice put in jeopardy.

Lovato v. New Mexico, 242 U. S. 199.

Courts are invested with authority to discharge a jury from giving any verdict, whenever in their opinion there is a manifest necessity therefor, and to order a new trial by another jury; and a defendant is not thereby twice put in jeopardy.

Thompson v. U. S., 155 U. S. 274.

Ex parte Bigelow, 113 U. S. 328.

The discharge of the jury by the court from giving any verdict, without the consent of the prisoner, the jury being unable to agree, is not a bar to a future trial for the same offense.

U. S. v. Perez, 9 Wheat. 579.

Keerl v. Montana, 213 U. S. 135.
Dreyer v. Illinois, 187 U. S. 86.

Robertson v. Baldwin, 165 U. S. 281.

Simmons v. U. S., 142 U. S. 148.

Logan v. U. S., 144 U. S. 297.

The return of a verdict on Sunday and the discharge of the jury are a bar to a further prosecution.

U. S. v. Ball, 163 U. S. 662.

Where a defendant was acquitted of homicide but convicted of an assault, and upon appeal by him the judgment was reversed, his subsequent conviction of the higher crime was held not to be a violation of the act of Congress for the government of the Philippines (of July 1, 1902, 32 Stat. 691, chap. 1369), providing that "no person for the same offense shall be twice put in jeopardy of punishment."

Trono v. U. S., 199 U. S. 521.
Stroud v. U. S., 251 U. S. 15.

Amend. 5.-Rights of Persons-Double Jeopardy.

Where a law authorizes imprisonment or a fine, and the court, through inadvertence, has imposed both punishments, after the fine is paid the court can not, during the same term, change its judgment by sentencing the defendant to imprisonment.

Ex parte Lange (18 Wall. 175), in which the court said that this clause was designed as much to prevent the criminal from being twice punished for the same offense as from being tried for it.

Self-Incrimination

Construction of Clause

This clause must be given a broad construction in favor of the right which it was intended to secure, the object being to insure a witness, in any investigation in the Federal courts, against being compelled to give testimony which might tend to incriminate him. It applies, however, only to criminal cases, and the term "criminal case" means a prosecution for a criminal offense against the party who is a witness.

Counselman v. Hitchcock, 142 U. S. 562.

Brown v. Walker, 161 U. S. 596.

See also

Lees v. U. S., 150 U. S. 480.

Boyd v. U. S., 116 U. S. 616.

I. C. C. v. Baird, 194 U. S. 45.

U. S. v. Lombardo, 228 Fed. 980, holding sec. 6 of the white slave traffic act of June 25, 1910 (36 Stat. 826), unconstitutional under this amendment.

It is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned, and for performance of which he is entitled to no further compensation than that which the statutes provide.

Blair v. U. S., 250 U. S. 281.

All Witnesses Are Entitled to Protection

It is impossible that the meaning of this provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It is not limited to such cases, but the object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief which it seeks to guard.

Counselman v. Hitchcock, 142 U. S. 562, in which act of Congress (Revised Statutes, sec. 860) was held unconstitutional because not affording the witness absolute immunity against future prosecution for the offense to which the question related.

A corporation is not a person within the meaning and protection of this amendment.

Hale v. Henkel, 201 U. S. 43.

Baltimore, etc., R. Co. v. I. C. C., 221 U. S. 612.
American Lith. Co. v. Werckmeister, 221 U S. 603.
American Tob. Co. v. Werckmeister, 207 U. S. 284.

Amend 5.-Rights of Persons-Self-incrimination.

An officer of a corporation who actually holds the physical possession, custody, and control of books and papers of the corporation, which he is required by a subpœna duces tecum to produce, is not entitled to the same protection against exposing the contents thereof which would tend to incriminate him as if the books and papers were absolutely his own.

Wilson v. U. S., 221 U. S. 361.
Dreier v. U. S., 221 U. S. 394.
Grant v. U. S., 227 U. S. 74.
Heike v. U. S., 227 U. S. 131.
Perlman v. U. S., 247 U. S. 7.
Ex parte Fuller, 262 U. S. 91.
Dier v. Banton, 262 U. S. 147.
McCarthy v. Arndstein, 262 U. S. 355.
Essgee Co. v. U. S. 262 U. S. 151.

Claim of Privilege and Duty of the Court

A witness can not avoid answering questions upon his mere statement that his answers to them will tend to incriminate him; that is for the court to decide.

Foot v. Buchanan, 113 Fed. 156.

In re Hess, 134 Fed. 109.

Ex parte Irvine, 74 Fed. 960.

See also

In re Kanter, 117 Fed. 356, holding that presumption favors the claim of privilege.

Before Grand Jury

It is entirely consistent with the language of this article that the privilege of not being a witness against himself is to be exercised in a proceeding before a grand jury. The provisions of the sixth amendment distinctly mean a criminal prosecution against a person who is accused and who is to be tried by a petit jury, but a criminal prosecution under that article is much narrower than a "criminal case " under this article.

Counselman v. Hitchcock, 142 U. S. 563.

See also

Sanderson's case, 3 Cranch (C. C.), 638.

Devaughn's case, 2 Cranch (C. C.), 501, wherein it was held that a witness before the grand jury is bound to answer a question although he makes oath that he can not answer it without incriminating himself.

It is fatal to an indictment that the defendant was called to testify before the grand jury in the particular matter from which it resulted without being informed or knowing that his own conduct was the subject under investigation.

U. S. v. Edgerton, 80 Fed. 374.

In Immigration Proceedings

Where a person arrested as an alien within the United States in violation of law in that he had in his possession for distribution printed matter advocating overthrow of the Government by force or violence, upon being called and sworn as a witness by the Government to prove his alienage, stood mute-held, that admission of alienage, which is not an element of the crime of

Amend. 5.-Rights of Persons-Self-incrimination.

sedition, would not have tended to incriminate him, and that the immigration officers might properly have inferred the fact of alienage from his silence.

Bilokumsky v. Tod, 263 U. S. 149.

Right to Be Informed of Privilege

A defendant who voluntarily takes the stand and testifies upon his own behalf can not claim the protection of this amendment and may be subjected to cross-examination concerning his statement. If the witness elects to waive his privilege, as he may doubtless do, since the privilege is for his protection and not for that of other parties, and discloses his criminal connections he is not permitted to stop, but must go on and make a full

statement.

Powers v. U. S., 223 U. S. 303.
Brown v. Walker, 161 U. S. 597.
Reagan v. U. S., 157 U. S. 301.
Sawyer v. U. S., 202 U. S. 165.

As a Personal Privilege

The right of a person to refuse to incriminate himself is purely a personal privilege of the witness. It does not permit him to plead the fact that some third person might be incriminated by his testimony, even though he were the agent of such person, and an officer or agent of a corporation can not refuse to testify because his testimony may incriminate the corporation.

Hale v. Henkel, 201 U. S. 43.

McAlistor v. Henkel, 201 U. S. 90.

The privilege is personal and can not be invoked by counsel.

In re Knickerbocker S. B. Co., 136 Fed. 958.

See also

In re O'Shea, 166 Fed. 180, as to permitting a witness to consult counsel.

Absolute Immunity

In general. This amendment does not deprive the law-making authority of the power to compel the giving of testimony even though the testimony when given might serve to incriminate the one testifying, provided immunity be accorded, the immunity, of course, being required to be complete; that is, in all respects commensurate with the protection guaranteed by the constitutional limitation.

Glickstein v. U. S., 222 U. S. 139.

American Litho. Co. v. Werckmeister, 221 U. S. 603.

Assurance by the court of immunity.-An assurance by the court that no information given by a person in his answers would or could be used against him in any prosecution is not sufficient. He can not be required to waive his constitutional privilege upon such an assurance by the court, but has the right to stand upon his constitutional privilege notwithstanding such assurance and to remain silent whenever any question is asked the answer to which may tend to incriminate him.

Foot v. Buchanan, 113 Fed. 156.

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