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Syllabus.

The assignments of error which deal with the disposition of Heike's special plea are therefore overruled.

[101] The judgment of the circuit court is affirmed.

HEIKE v. UNITED STATES."

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 520. Argued January 9, 1913.-Decided January 27, 1913.

[227 U. S. 131.]

There is a clear distinction between an amnesty for crime committed and the constitutional protection under the fifth amendment from being compelled to be a witness against oneself.

The obvious purpose of the act of February 25, 1903, c. 755, 32 Stat. 854, 904, granting to witnesses in investigations of violations of the Sherman Act immunity against prosecution for matters testified to, was to obtain evidence that otherwise could not be obtained; the act was not intended as a gratuity to crime, and is to be construed. as far as possible, as coterminous with the privilege of the person concerned.

Evidence given in an investigation under the Sherman Act does not make a basis under the act of February 25, 1903, for immunity of the witness against prosecutions for crimes with which the matters testified about were only remotely connected.

Granting a separate trial to one of several jointly indicted for conspiracy is within the discretion of the trial judge, reviewable only in case of abuse.

Even if there may have been an abuse in some instances of indicting under 5440 for conspiracy instead of for the substantive crime itself, liability for conspiracy is not taken away by its success, and in a case such as this, there does not appear to be any abuse. Evidence showing that a conspiracy had continued before and after the periods specified in the indictment, held in this case not inadmissible against a defendant present at the various times testified to. 192 Fed. Rep. 83, affirmed.

• For opinion of Circuit Court of Appeals (192 Fed, 83) see ante, page 441.

Syllabus and statements of arguments copyrighted, 1913, by The Banks Law Publishing Company.

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95825°-VOL 4-17-29

Argument for Petitioner.

The facts, which involve the extent of immunity granted under the act of February 25, 1903, c. 755, 32 Stat. 854, 904, are stated in the opinion.

Mr. John B. Stanchfield, with whom Mr. George S. Graham and Mr. Frederick Allis were on the brief, for petitioner:

[132] The immunity statute herein pleaded in bar is a grant of amnesty from the sovereign, operating by way of a pardon from the Government. It bears no analogy, either in conditions of acquirement or in mode of operation, to the constitutional privilege of the fifth amendment.

There is a fundamental distinction between the constitutional privilege and the statutory immunity. It is apparent on the very face thereof.

The first proceeds upon the theory of a shield against compulsory self-incrimination, given by sovereign to citizen.

The second proceeds upon the theory of a pardon or amnesty, given by the Government to the citizen.

Even if the immunity should receive a strict and narrow construction because it is "in derogation of the sovereign power to punish," and public policy may favor a narrow, and is opposed to a broad, view of the immunity provision, on the other hand, the pardon theory of immunity affords a complete refutation of any narrow rule of construction, and public policy requires a broad construction of the immunity provision.

The plain language of the statute itself shows that it confers general amnesty, and should operate as a pardon, and not in the way the old constitutional privilege does. See act of January 24, 1862, § 103, Rev. Stat.; § 859, Rev. Stat.; act of January 24, 1862, c. 11, 12 Stat. 333; § 860, Rev. Stat.; act of February 25, 1868, c. 13, § 1; 15 Stat. 37; act of Feb. ruary 11, 1893, 27 Stat. 443; Counselman v. Hitchcock, 142 U. S. 547; Brown v. Walker, 161 U. S. 591.

The absurdity and impossibility of imposing all the conditions and limitations of the constitutional privilege shows that the immunity statute was intended to operate as a grant of amnesty or pardon.

Argument for Petitioner.

The public policy of the statute shows that it should operate as a grant of amnesty or pardon. United States v. Armour, 142 Fed. Rep. 819, 826.

[133] The weight of authority shows that the immunity statute is an act of general amnesty, and therefore should operate as a pardon from the Government. Brown v. Walker, 161 U. S. 591; Burrell v. Montana, 194 U. S. 572, 578; Hale v. Henkel, 201 U. S. 43, 67; United States v. Price, 96 Fed. Rep. 962; United States v. Swift, 186 Fed. Rep. 1002. State v. Murphy, 107 N. W. Rep. 470, distinguished.

The pardon or amnesty theory of the immunity statute affords a complete refutation (1) of every argument advanced by the Government, (2) of every ground for the opinion of the learned trial court, save one, (3) and of every ground assigned by the learned Court of Appeals without exception, in opposition to the plea in bar herein.

The authorities cited by the Government for its contentions, or those of the court below, are not in point, if the immunity statute be treated as a statute of amnesty.

There are but three cases in which the witness has pleaded the immunity statute in bar to a prosecution. United States v. Armour, 142 Fed. Rep. 808; United States v. Swift, 186 Fed. Rep. 1002; State v. Murphy, 107 N. W. Rep. 470.

It would seem to follow from this review of cited cases, none of which support the contention of the Government that the immunity statute of 1903 is merely a defense against self-incrimation, requiring to be pleaded as a privilege, and extending no further than the exclusion of testimony given; nor anything against the contention that the statute grants general amnesty to witnesses, as this court has said, operating in every case to which it is applicable, ex proprio vigore as a pardon does.

The petitioner's former testimony was "concerning" the "transaction, matter or thing" on account of which he is being prosecuted, within the meaning of the statute; although the particular offense for which he has been indicted was not the direct subject of the inquiry at which [134] he testified, yet it was incidentally discovered, led up to and prosecuted by means of his testimony.

Argument for Petitioner.

The word "concerning" should receive the broadest possible construction. Brown v. Walker, 161 U. S. 623; United States v. Burr, 25 Fed. Cas. 40; Counselman v. Hitchcock, 142 U. S. 564, 562; Hale v. Henkel, 201 U. S. 67; Boyd v. United States, 116 U. S. 616, 629; People v. Forbes, 143 N. Y. 219, 228; Am. Lithographic Co. v. Werckmeister, 221 U. S. 603, 611.

Whether or not the immunity statute should receive a broad application is a political question, and the policy adopted by Congress is final and binding on all.

Public policy is a political question, and it is the province of Congress, in the first place, to determine the public policy of every statute it enacts. Pennsylvania v. Wheeling, 18 How. 440; Rhode Island v. Massachusetts, 12 Pet. 737, 738; Luther v. Borden, 7 How. 42; William v. Suffolk, &c., 13 Pet. 420; Foster v. Neilson, 2 Pet. 253; Head Money Cases, 112 U. S. 598; United States v. Rauscher, 119 U. S. 418, 419; United States v. Collins, 25 Fed Cas. 550; United States v. Armour, 142 Fed. Rep. 826.

The pleadings, on the plea in bar, afforded sufficient evidence on the question of relevancy to make it error to direct the verdict on the special trial of the plea.

The Circuit Court of Appeals erred in holding that petitioner was entitled to no immunity because he was subpœnaed and testified as an officer of the corporation under investigation at the anti-trust proceeding, where he gave the evidence he now relies on. State v. Nowell, 58 N. H. 314; Brown v. Walker, 161 U. S. 602; Hale v. Henkel, 201 U. S. 69-70. Wilson v. United States, 221 U. S. 361, distinguished. And see B. & O. v. Int. Com. Comm. 221 U. S. 612; Am. Lith. Co. v. Werckmeister, 221 U. S. 611; Int. Com. Comm. v. Baird, 194 U. S. 25.

The court below erred in denying the motion of the defendant Heike for a separate trial. He was unlawfully [135] prejudiced by being tried together with the other defendants.

No man can receive a fair trial if he is forced to stand in a background of fraud and knavery created by the acts of others but which necessarily throw their dubious gloom

Argument for Petitioner.

over his own conduct and impart a sinister significance to his most innocent acts. White v. The People, 81 Illinois, 338; State v. Oxendine, 107 Nor. Car. 783.

In addition, the defendant was greatly prejudiced by the fact that during the course of the trial three of the other defendants pleaded guilty. This turn of events should, it is submitted, have induced the court to grant to the defendant Heike a separate trial. United States v. Matthews, Fed. Cas. No. 15741b; Krause v. United States, 147 Fed. Rep. 444.

While the lower court had discretion upon the motion for a severance, United States v. Marchant, 12 Wheat. 480; United States v. Ball, 163 U. S. 662, it does not follow, however, that the granting or denial of the motion is not subject to review by this court. O'Connell v. Pennsylvania Co., 118 Fed. Rep. 991; Osborne v. The Bank, 9 Wheat. 738, 866; Krause v. United States, 147 Fed. Rep. 444; White v. People, supra; Morrow v. The State, 14 Lea (Tenn.), 483; Watson v. The State, 16 Lea, 604; State v. Desroche, 47 La. Ann. 651.

It was error to convict petitioner on the sixth count, for conspiracy.

It has become customary for prosecutors to charge conspiracy rather than the commission of actual crime in their indictments, especially statutory crimes of the class under consideration. Although relying on the same evidence, they find it easier to convince a jury of secret conspiracy than of a palpable crime; it opens the door to metaphysical speculation in place of dry proof; the inquiry is into intentions rather than acts; it is a reversion to all the evils of the old practice when the trial was of a [136] conspiracy in the minds of the conspirators without overt acts to show it. This is abuse. See United States v. Kissel, 173 Fed. Rep. 823, 828; Wharton's Criminal Law, § 1402.

The circumstantial evidence, from which alone the jury inferred petitioner's participation in and knowledge of the frauds in question, was not legally sufficient for those purposes; the learned trial court erred in allowing the jury to draw such inference, and the learned Court of Appeals erred in affirming the judgment in that respect.

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