Tolleson v. Greene , 83 Ga. 499 ( 1889 )

Bleckley, Chief Justice.

1. To come at once to the essence of this case, the mistake, we conceive, of counsel for the plaintiff in error is, in not drawing the distinction between discovery and relief. No discovery of facts which would tend to criminate the party can be compelled. Story Eq. Pl. §§591 to 594. But as a measure of relief, to compel a party to part with property which he may have stolen is no violation of any privilege which the law gives. Id. §525. There certainly can be no privilege in any person to hold on to the fruits of crime as a means of preventing punishment. Here, according to the petition for habeas corpus, the plaintiff in error made no disclosure to the court, and so far as appears, was not called upon to make any prejudicial to his own innocence. He never did confess even to the possession of the assets in question; and taking the joetition for habeas corpus and the recital in the order of commitment together, the court ordering the commitment must have become satisfied from other evidence that he had the possession of the assets, and could turn them over to the receiver. The order so to surrender them was not a measure of discovery but of relief. It was one of the steps in the cause tending to ultimate relief by final decree, and a means to make the same effective.

All the citations of authority by counsel going to show that no party or witness can be required to answer questions tending to criminate himself, we recognize as sound law, such as thé cases of Ex parte Fisk, 113 U. S. 713, and Holman v. The Mayor, 34 Tex. 668. If the present- case came within the letter or principle of such authorities, we should entertain no question of the right of the plaintiff in error to a discharge. But how will surrendering the assets of one bank tend to convict the party of embezzling or stealing the assets of another bank ? Or supposing them to be the same assets and therefore the assets of both banks, how would his surrender of them tend any more to convict him of embezzling or stealing than would his retention of them ? It seems to us that a prompt surrender in obedience to an order of the proper court would be favorable to innocence rather than evidence of guilt. If his denial of possession and his delay to surrender would bear against him more hardly by reason of the surrender when finally made, this would not be the fault of the court in coercing a surrender, in spite of his denial and delay, but his own fault in denying and delaying. Is a court to stop short in obliging a contumacious party to comply with a lawful order touching relief, because such party has denied the fact on which the relief is founded, and delayed complying with the order? ¥e think not. Suppose a man steals a horse and a statutory possessory warrant is sued out, can the thief keep the horse and refuse to produce it under the warrant, because to produce it would tend to criminate him ? If so, an honest man would be on a worse footing in court than a thief. Is it not enough to protect the thief against furnishing evidence that he has the horse; but when evidence satisfactory to the court comes from another source, must the court forbear to give effect to it because the horse was stolen rather than taken under an honest claim of right ? Surely no such discrimination in favor of criminal possession is made or can be made by the law of the land.

2. It certainly does not appear that there was any want of jurisdiction of the court over the subject-matter or the person, or any want of power to make the order for turning over the assets to the receiver, or the order for the imprisonment of the plaintiff in error until he should comply therewith. This being so, the validity of that order is to be taken for granted in this proceeding, and whether it was erroneous or not is not open to inquiry. Cooley Const. Lim. *347, 348; Sennott’s case; 146 Mass. 489; s. c. 4 Am. St. Rep. 344, Church Hab. Corp. §362 et seq.; Ex parte Parks, 93 U. S. 18; Smith v. McLendon, 59 Ga. 528.

. The order being valid, the imprisonment under it was not unlawful, and the remedy of the party to purge himself of contempt is not by habeas corpus, but by application to the court by whose order he was in confinement. If the contempt is to be purged without compliance with the order of that court, it is there and there alone that the purging can take place. Certainly it could not take place before Judge Clarke sitting as a habeas corpus court, although he is judge also of the court by which the commitment was ordered. The two courts are entirely separate and distinct.

The order to remand the petitioner to the former custody being the only judgment that could be properly rendered on the petition, the return thereto and the evidence submitted, the inadvertence of quashing the Writ also was of no consequence, and is' not cause for reversing a judgment otherwise correct. As the case was fully heard before the writ was quashed, and as the petitioner was not entitled to his discharge, the mere quashing of the writ was a harmless error.

Judgment affirmed.