# Twining v. New Jersey

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United States Supreme Court
211 U.S. 78
Albert Twining v. New Jersey
Argued: March 19, 20, 1908. --- Decided: November 9, 1908
Albert C. Twining and David C. Cornell, the plaintiffs in error, hereafter called the defendants, were indicted by the grand jury of Monmouth county, in the state of New Jersey. The indictment charged that the defendants, being directors of the Monmouth Trust & Safe Deposit Company, knowingly exhibited a false paper to Larue Vreedenberg, an examiner of the state banking department, with intent to deceive him as to the condition of the company. Such an act is made a misdemeanor by a statute of the state (P. L. 1899, p. 450, at 461), which is as follows:
'Every director, officer, agent, or clerk of any trust company who wilfully and knowingly subscribes or makes any false statement of facts or false entries in the books of such trust company, or knowingly subscribes or exhibits any false paper, with intent to deceive any person authorized to examine as to the condition of such trust company, or wilfully or knowingly subscribes to or makes any false report, shall be guilty of a high misdemeanor and punished accordingly.'
The defendants were found guilty on March 1, 1904, by the verdict of a jury, and judgment upon the verdict, that the defendants be imprisoned for six and four years, respectively, was affirmed successively by the supreme court and the court of errors and appeals. There needs to be stated here only such part of what occurred at the trial as will describe the questions on which this court is authorized to pass. It appeared that in February, 1903, the company closed its doors. The bank examiner came at once to the place of business for the purpose of examining the affairs of the company, and found there Twining and Cornell, who were respectively president and treasurer as well as directors. Having soon discovered that, according to a book entry, there had been a recent payment of $44,875, for 381 shares of stock, the examiner inquired of the defendants by what authority this had been done, and was informed that it was done by authority of the board of directors, and the following paper was produced to him as a record of the transaction:
Monmouth Trust & Safe Deposit Company, Asbury Park, N. J.
A special meeting of the board of directors of this company was held at the office of the company on Monday, Feb. 9th, 1903.
There were present the following directors: George F. Kroehl, S. A. Patterson, G. B. M. Harvey, A. C. Twining, D. C. Cornell.
The minutes of the regular meeting held Jan. 15th, 1903, were read, and on motion duly approved.
All loans taken since the last meeting were gone over carefully, and, upon motion duly seconded, were unanimously approved.
A resolution that this company buy 381 shares of the stock of the First National Bank at $44,875 was adopted.
On motion the meeting adjourned.
This was the paper referred to in the indictment, and it was incumbent on the prosecution to prove that it was false and that it was 'knowingly' exhibited by the defendants to the examiner. There was evidence on the part of the prosecution tending to prove both these propositions. The defendants called no witnesses and did not testify themselves, although the law of New Jersey gave them the right to do so if they chose. In his charge to the jury the presiding judge said:
'Now, gentlemen, was this paper false? In the first place, the paper charged in the indictment certifies in effect that a special meeting of the board of directors of this company was held at the office of the company on Monday, February 9, 1903. There were present the following directors: George F. Kroehl, S. A. Patterson, G. B. M. Harvey, A. C. Twining, D. C. Cornell.
'Among other things appears a resolution of this company to buy 381 shares of the stock of the First National Bank at $44,875, which was adopted.
'Now, was that meeting held or not?
'That paper says that at this meeting were present, among others, Patterson, Twining, and Cornell.
'Mr. Patterson has gone upon the stand and has testified that there was no such meeting to his knowledge; that he was not present at any such meeting; that he had no notice of any such meeting; and that he never acquiesced, as I understand, in any way, in the passage of a resolution for the purchase of this stock.
'Now, Twining and Cornell, this paper says, were present. They are here in court and have seen this paper offered in evidence, and they know that this paper says that they were the two men, or two of the men, who were present. Neither of them has gone upon the stand to deny that they were present or to show that the meeting was held.
'Now, it is not necessary for these men to prove their innocence. It is not necessary for them to prove that this meeting was held. But the fact that they stay off the stand, having heard testimony which might be prejudicial to them, without availing themselves of the right to go upon the stand and contradict it, is sometimes a matter of significance.
'Now, of course, in this action, I do not see how that can have much weight, because these men deny that they exhibited the paper, and if one of these men exhibited the paper and the other did not, I do not see how you could say that the person who claims he did not exhibit the paper would be under any obligation at all to go upon the stand. Neither is under any obligation. It is simply a right they have have to go upon the stand, and, consequently the fact that they do not go upon the stand to contradict this statement in the minutes, they both denying, through their counsel and through their plea, that they exhibited the paper, I do not see that that can be taken as at all prejudicial to either of them. They simply have the right to go upon the stand, and they have not availed themselves of it, and it may be that there is no necessity for them to go there. I leave that entirely to you.'
Further, in that part of the charge relating to the exhibition of the paper to the examiner, the judge said:
'Now, gentlemen, if you believe that that is so; if you believe this testimony, that Cornell did direct this man's attention to it,-Cornell has sat here and heard that testimony and not denied it,-nobody could misunderstand the import of that testimony, it was a direct accusation made against him of his guilt,-if you believe that testimony beyond a reasonable doubt, Cornell is guilty. And yet he has sat here and not gone upon the stand to deny it. He was not called upon to go upon the stand and deny it, but he did not go upon the stand and deny it, and it is for you to take that into consideration.
'Now Twining has also sat here and heard this testimony, but you will observe there is this distinction as to the conduct of these two men in this respect: the accusation against Cornell was specific by Vreedenberg. It is rather inferential, if at all, against Twining, and he might say,-it is for you to say whether he might say,-'Well, I don't think the accusation against me is made with such a degree of certainty as to require me to deny it, and I shall not; nobody will think it strange if I do not go upon the stand to deny it, because Vreedenberg is uncertain as to whether I was there; he won't swear that I was there.' So consequently the fact that Twining did not go upon the stand can have no significance at all.
'You may say that the fact that Cornell did not go upon the stand has no significance. You may say so, because the circumstances may be such that there should be no inference drawn of guilt or anything of that kind from the fact that he did not go upon the stand. Because a man does not go upon the stand you are not necessarily justified in drawing an inference of guilt. But you have a right to consider the fact that he does not go upon the stand where a direct accusation is made against him.'
The question duly brought here by writ of error is whether the parts of the charge set forth, affirmed, as they were, by the court of last resort of the state, are in violation of the 14th Amendment of the Constitution of the United States.
Messrs. John G. Johnson, Marshall Van Winkle, William W. Gooch, Herbert C. Smyth, and Frederic C. Scofield for plaintiffs in error.
[Argument of Counsel from pages 83-85 intentionally omitted]
Messrs. Robert H. McCarter, H. M. Ncvius, and Nelson B. Gaskill for defendant in error.
[Argument of Counsel from pages 86-90 intentionally omitted]
Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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