Nos. 123, 124. Argued January 20, 1913.--Decided February 24, 1913.

The Fifth Amendment is not obligatory upon the States or their judicial establishments, and regulates the procedure of Federal courts only. Twining v. New Jersey, 211 U. S. 78.

A violation of defendant's rights under a provision in the state constitution which is identical to one in the Federal Constitution which is only obligatory on the Federal courts, does not infringe a Federal right.

The word "testimony" more properly refers to oral evidence than to documentary, and it is reasonable that a distinction should be made between the two.

The prohibition in § 9 of the Bankruptcy Act of 1898 against offering testimony given by the bankrupt in accordance with the provisions of that section as evidence in any criminal proceeding applies only to the testimony and not to the schedules referred to therein. Rev. Stat., § 860, prohibiting the use of a pleading of a party or discovery of evidence by judicial proceeding against him in a criminal proceeding, while in force, was limited by its own terms to proceedings in the Federal courts and does not apply to one in the state court. Evidence showing the results of an expert examination of the bankrupt's books is not "testimony" within the meaning of §9 of the Bankruptcy Act of 1898.

Quære, and not necessary to determine in this case, whether the prohibition in § 9 of the Bankruptcy Act against using testimony of the bankrupt is not limited to criminal proceedings in the Federal courts and does not apply to such proceedings in the state courts. 228 Pa. St. 400, affirmed.

THE facts, which involve the question whether schedules filed by the bankrupt are, under the Fifth Amendment to

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Argument for Defendant in Error.

the Federal Constitution and the provisions of the Bankruptcy Act, admissible in a criminal trial of the bankrupt in the state court, are stated in the opinion.

Mr. John B. Brooke, with whom Mr. Charles H. English was on the brief, for plaintiff in error:

The statement made by the accountant, from the books of the bank, which had been turned over to the trustee in bankruptcy, was improperly admitted.

If a bankrupt obeys the Bankruptcy Law, he will file schedules and turn over his books and papers to the trustee and obey all other lawful orders of the referee. If he does not do these things as directed by the United States statute and general orders made by the United States Supreme Court for the government of bankrupts, he can be declared in contempt of court and imprisoned, and when the United States law compels an individual to file schedules and turn over his books and papers, the use of these schedules and these books against him in a criminal trial is a violation of his rights under the Constitution of the United States and the constitution of the State of Pennsylvania. Amendment V of the United States Constitution; Matter of Fellerman, 17 Am. Bankr. Reps. 785; Jacobs v. United States Circuit Court of Appeals, First Circuit, 161 Fed. Rep. 694; United States v. Marsh Chambers, 13 Am. Bankr. Reps. 708; Boyd v. United States, 116 U. S. 616, 752; Johnson v. United States, 163 Fed. Rep. 30; Cohen v. United States, 170 Fed. Rep. 715; Burrell v. State of Montana, 194 U. S. 572.

Mr. W. Pitt Gifford, with whom Mr. J. Orin Wait and Mr. U. P. Rossiter were on the brief, for defendant in

error:

Generally speaking, and in the absence of statutory regulation on the subject, testimony and written statements, voluntarily given or made by a party or witness in VOL. CCXXVII-38

Argument for Defendant in Error.

227 U. S.

a judicial proceeding, are, as admissions and confessions, competent against him on the trial of any issue in a criminal case to which they are pertinent; and statements made by a party in a judicial inquiry are considered voluntary, if he might have objected to answering on the ground that it would incriminate him, and failed to do so. Wharton's Crim. Evidence, § 664; 1 Roscoe, Crim. Evidence, 8th ed., pp. 82, 245; 1 Greenleaf on Evidence § 225; Williams v. Commonwealth, 29 Pa. St. 102; Hendrickson v. People, 10 N. Y. 13; Commonwealth v. Reynolds, 122 Massachusetts, 454; Vermont v. Duncan, 4 L. R. A. (N. S.) 1144 n.; People v. Wieger, 100 California, 352; People v. Arnold, 40 Michigan, 710; Abbott v. People, 75 N. Y. 602; Commonwealth v. Doughty, 139 Pa. St. 383; Commonwealth v. House, 6 Pa. Super. 92; Burrell v. Montana, 194 U. S. 572.

A written statement of the defendant, when prepared deliberately and seriously, is not only admissible in evidence against him, but is of weight proportioned to its pertinency. Wharton's Crim. Evidence, § 643, 8th ed.; 1 Greenleaf, § 215, Lewis's ed.

That bankrupts situated as these plaintiffs in error were, might have refused to answer, on the ground of selfincrimination, has been expressly ruled. Counselman v. Hitchcock, 142 U. S. 547; Re Nachman, 8 Am. Bankr. Reps. 180; In re Feldstein, 4 Am. Bankr. Reps. 32; In re Welsh, 4 Am. Bankr. Reps. 693; In re Henschell, 7 Am. Bankr. Reps. 207; In re Shera, 7 Am. Bankr. Reps. 552; In re Smith, 7 Am. Bankr. Reps. 213; In re Kanter, 117 Fed. Rep. 356; United States v. Goldstein, 132 Fed. Rep. 789.

No distinction is to be found, in principle, between refusing to answer questions or give testimony as required by $7a of the Bankruptcy Act, on the ground of selfincrimination, and refusing to file schedules or turn over books of accounts as required by the same section of the Bankruptcy Act on the ground of incrimination.

227 U.S.

Argument for Defendant in Error.

While upon an application to compel a bankrupt to produce his books and deliver them to his trustee, the plea of constitutional privilege must prevail, yet he should be required to bring the books and papers which he alleges contained incriminating evidence before either the court or the referee in bankruptcy, and if it appears that his plea is well founded, the court can make such order as will fully protect him from discovery of such evidence, and if possible enable the trustee to obtain such information as is necessary and indispensable in the settlement of the estate. In re Hess, 134 Fed. Rep. 109; In re Hark, 136 Fed. Rep. 986; In re Harris, 164 Fed. Rep. 292.

Having offered no such objection, clearly, therefore, their acts in filing their schedules and delivering the books of account were voluntary; they could not thereafter set up the protection of the Constitution, either Federal or state, which they had so unequivocally waived. Tucker v. United States, 151 U. S. 164.

If freely given once, the evidence may of course be used thereafter, for the privilege is purely personal and may be waived. See also Tracy & Co., 23 Am. Bankr. Reps. 438. Matter of Fellerman, 17 Am. Bankr. Reps. 785, which involved no question of constitutional privilege, distinguished. See also Glassner, Snyder & Co., 8 Am. Bankr. Reps. 184; George P. Rosser, 2 Am. Bankr. Reps. 746; In re Kanter, 117 Fed. Rep. 356.

The time to claim the privilege is when the testimony is offered or book or document is about to be inspected, and if not then claimed, it is waived. Remington on Bankruptcy, 1561; Tracy & Co., 23 Am. Bankr. Reps. 438; Burrell v. Montana, 194 U. S. 572; Kerrch Bros. v. United States, 171 Fed. Rep. 366; United States v. Halstead, 27 Am. Bankr. Reps. 302; Matter of Tracy & Co., 23 Am. Bankr. Rep. 438; Strait v. State, 84 Minnesota, 384; In re Harris, 221 U. S. 274; Adams v. New York, 192 U. S. 585; Re Nachman, 8 Am. Bankr. Reps. 180.

Johnson v. United States, 20 Am. Bankr. Reps. 724; United States v. Chambers, 13 Am. Bankr. Reps. 708; United States v. Cohen, 170 Fed. Rep. 715; Burrell v. Montana, 194 U. S. 572; Jacobs v. United States, 161 Fed. Rep. 694; Boyd v. United States, 116 U. S. 616, distinguished.

With reference to the construction of § 7 of the Bankruptcy Act of 1898, cl. 8 provides for the filing of schedules; cl. 9 for the bankrupt's examination at the first creditor's meeting, or as the court may order. The proviso, but no testimony given by him shall be offered in evidence against him in any criminal proceeding, is a part of cl. 9, and clearly refers only to the bankrupt's examination. The schedules and books of account are not to be considered "testimony," under § 7a, cl. 9. "Testimony" is confined to oral evidence or the statements made by a witness under oath. Bouvier's Law Dict.; 28 Am. & Eng. Encycl. of Law.

No definition of the word "testimony" is broad enough to include pleadings or other papers filed in the case previous to the trial or hearing. Johnson v. United States, 20 Am. Bankr. Reps. 724.

Had Congress intended to include in said provision all information furnished by the bankrupt, it could easily have so stated, by providing that no testimony or information given by him shall be offered against him in evidence in any criminal proceeding.

MR. JUSTICE PITNEY delivered the 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, Act 172, p. 145), “Relating to the receiving of deposits by insolvent bankers, etc.. defining the offense, and providing a punishment there