Courts have expressed it, the mere giving of one's name or residence would not invade his legal rights as distinguished from testimony which would go to the substance of a prosecution against him.
Many cases have arisen in the Courts where different phases of the applicability of the law have been discussed but running through them all seems to be a common thread which connects them in to a general rule. In Heike v. United States, 227 U.S. 131, at page 144, 33 S. Ct. 226, at Age 228, 57 L. Ed. 450., Ann.Cas.1914C, 128, the opinion speaks of this phase of the subject in the following language:
'When the statute speaks of testimony concerning a matter it means concerning it in a substantial way, just as the constitutional protection is confined to real danger, and does not extend to remote possibilities out of the ordinary course of the law.'
In Doyle v. Hofstader, 257 N.Y. 244, 177 N.E. 489, 87 A.L.R. 418, Judge Cardozo of the New York Court of Appeals, afterward a United States Supreme Court Justice, expresses the thought at page 493 of 177 N.E. in the following language:
'A witness is not required to show, in order to make his privilege available, that the testimony which he declines to give is certain to subject him to prosecution, or that it will prove the whole crime, unaided by testimony from others. It is enough, to wake the privilege into life, that there is a reasonable possibility of prosecution, and that the testimony, through falling short of proving the crime in its entirety, will prove some part or feature of it, will tend to a conviction when combined with proof of other circumstances which others may supply.'
The original guiding star for the Courts on this question appears to be the case of Counselman v. Hitchcock, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110, and it has likewise been touched upon in Heike v. United States, supra, but a more recent pronouncement by the High Court upon the subject is found in United States v. Monia, 317 U.S. 424, at page 430, 63 S. Ct. 409, at page 412, 87 L. Ed. 376, where Mr. Justice Roberts, in speaking for the Court, lays down the following rule:
'The legislation involved in the instant case is plain in its terms and, on its face, means to the laymen that if he is subpoenaed, and sworn, and testifies, he is to have immunity. Instead of being a trap for the Government, as was the original Act, the statutes in question, if interpreted as the Government now desires, may well be a trap for the witness. Congress evidently intended to afford Government officials the choice of subpoenaing a witness and putting him under oath, with the knowledge that he would have complete immunity from prosecution respecting any matter substantially connected with the transactions in respect of which he testified, or retaining the right to prosecute by foregoing the opportunity to examine him.'
Mr. Justice Pine, in United States v. Eisele, D.C., 52 F.Supp. 105, seems to have adopted the view of the defendants herein contended for when at page 108 he says:
'Defendant's testimony after the claim of privilege, covering approximately 300 pages, relates to transactions, matters, and things covered by the indictment. It was the examiner's duty, when defendant claimed this privilege, to determine from the character of the questions asked and the circumstances of the inquiry, whether there was a likelihood that the answers might be incriminating, and if there was such likelihood, it was his duty to determine whether he wished to exchange immunity for testimony. If he did not wish so to do, he should have stopped further inquiry. He elected to take the other course.'
From the foregoing analysis of the facts and the law which seems to be applicable thereto, this Court can reach no other conclusion than that the prosecution under the indictment here concerns matters substantially connected with the transactions in regard to which the defendants as witnesses under subpoena were compelled to testify in the prior investigation. The witness should not be confronted with making a choice when giving his testimony under compulsion as to whether his situation would be more advantageous to himself to admit incriminating circumstances for the purpose of securing immunity or deny such incriminating circumstances and thereby become subject to liability for perjury. The laws of Congress adopted for the purpose of carrying the Fifth Amendment into practical effect relieve the witness of making this choice and fix his status.
For the reasons stated, the special plea in bar on behalf of the defendants will be sustained and an appropriate judgment may be entered accordingly.
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