Joseph McKenna

“ A narrower contention might have been yielded to by the state courts. It certainly should have been submitted to them. The statute does not prohibit the use of testimony against the consent of him who gave it. It prescribes a rule of competency of evidence which may or may not be insisted upon. It does not declare a policy the protection of which cannot be waived. And the time to avail of it is when the testimony is offered. After the testimony is admitted, its probative force cannot be limited. ”

“ In the case at bar, the court dealt with testimony which had been admitted without question or objection. We are brought, therefore, to the broad and ultimate contention of the plaintiff. We think it is untenable. There is no ambiguity in § 7 of the bankrupt act. It requires a bankrupt to submit to an examination concerning his property and affairs, and provides: 'But no testimony given by him shall be offered in evidence against him in any criminal proceeding.' It does not say that he shall be exempt from prosecution, but only, in case of prosecution, his testimony cannot be used against him. ”

“ Hitchcock, a witness before a grand jury which was investigating alleged violations of the Interstate Commerce Act claimed that questions addressed to him 'would tend to accuse and incriminate him.' Upon proceedings in the district court he was adjudged guilty of contempt, and ordered to pay a fine of $5 and to be taken into custody until he should answer the question. ”