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November 15, 1955


The opinion of the court was delivered by: MCGARRAGHY

The defendant was indicted and tried on a charge of violation of Title 2, United States Code, § 192, in which it was alleged that, when appearing as a witness before the Senate Permanent Subcommittee on Investigations of the Committee on Government Operations, the defendant 'unlawfully refused to answer a question put to him by the Subcommittee * * *.' At the close of the Government's case, the defendant made a motion for a judgment of acquittal which was renewed at the close of the entire case and was based upon the following grounds:

One -- The indictment fails to state a cause of action.

 Two -- The evidence shows the Committee did not have jurisdiction over the subject which the Subcommittee was investigating.

 Three -- The question propounded was not pertinent to the subject under inquiry.

 Four -- The question invaded the defendant's rights under the First Amendment to the Constitution.

 Point One.

 Defendant claims the indictment is defective for four reasons. (1) 'The indictment fails to set forth the essential elements necessary to charge a crime under 2 U.S.C. 192 * * *' in that 'it fails to allege that the refusal to answer was 'wilful'.' Defendant relies on Quinn v. United States, 349 U.S. 155, 165, 75 S. Ct. 668, 674, which held that 'a deliberate, intentional refusal to answer * * * must be proved beyond a reasonable doubt.' However, this refers to matters of proof at trial, and not to allegations in the indictment. In considering the element of wilfulness, the Court said:

 'Clearly not every refusal to answer a question propounded by a congressional committee subjects a witness to prosecution under 192. Thus if he raises an objection to a certain question -- for example, lack of pertinency or the privilege against self-incrimination -- the committee may sustain the objection and abandon the question, even though the objection might actually be without merit. In such an instance, the witness' refusal to answer is not contumacious, for there is lacking the requisite criminal intent. Or the committee may disallow the objection and thus give the witness the choice of answering it or not. Given such a choice, the witness may recede from his position and answer the question. And if he does not then answer, it may fairly be said that the foundation has been laid for a finding of criminal intent to violate § 192. In short, unless the witness is clearly apprised that the committee demands his answer notwithstanding his objections, there can be no conviction under § 192 for refusal to answer that question.'

 There is no contention in the pending case that the defendant was not apprised that the Subcommittee demanded his answer. The question is, then, need the indictment contain an allegation that the refusal was wilful? The statute is divided in two parts, the first dealing with a situation where a person duly summoned to appear 'wilfully makes default', and the second 'or, who having appeared, refuses to answer any question * * *.' That there are many circumstances which would vitiate a default in appearance pursuant to a summons, is, of course, quite apparent. Inclusion of the word 'wilful' in this part of the statute makes statutory what common sense would dictate. But having appeared, and refused to answer a question, and having had a further direction to answer, how can a further refusal to answer be said to be anything but wilful? Fields v. United States, 82 U.S.App.D.C. 354, 164 F.2d 97, certiorari denied 332 U.S. 851, 68 S. Ct. 355, 92 L. Ed. 421.

 As the Court said in Sinclair v. United States, 279 U.S. 263, 299, 49 S. Ct. 268, 274, 73 L. Ed. 692;

 '* * * The gist of the offense is refusal to answer pertinent questions. No moral turpitude is involved. Intentional violation is sufficient to constitute guilt. There was no misapprehension as to what was called for. The refusal to answer was deliberate. The facts sought were pertinent as a matter of law, and section 102 made it appellant's duty to answer. He was bound rightly to construe the statute. His mistaken view of the law is no defense. Armour Packing Co. v. United States, 209 U.S. 56, 85, 28 S. Ct. 428, 52 L. Ed. 681; Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 49, 33 S. Ct. 9, 57 L. Ed. 107.'

 See also In re Chapman, 166 U.S. 661, 672, 17 S. Ct. 677, 41 L. Ed. 1154.

 The indictment in the Sinclair case, supra, concluded with the statement: "And that said Harry F. Sinclair then and then unlawfully did refuse to answer said question. * * *" It did not allege a 'wilful' refusal.

 It is my view that the indictment in the pending case which charged the defendant 'unlawfully refused ...

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