The Detroit times. [volume] (Detroit, Mich.) 1903-1920, 1911-03-10
PLEA IS
0vERRULEO IN
bATHTUb CASE
Judge Denison Knocks Another Prop
From Under Defense of Alleged
Trust, and Indicted Men Must
Now Go To Trial.
Defendants Answers in Civil Suit
Not Testimony and Don't Free
Them From Prosecution.

Another prop was knocked from
under the defense in the bathtub
trust cases, Thursday, when Judge
Arthur Denison. OF Grand Rapids,
handed down a decision overruling
the pleas OF immunity filed by the
defendants and argued at length by a
distinguished array OF counsel In the
local United States court last week
The promptness with which Judge
Denison decided the important Ques-
ton was surprise to the lawyers.
There Is now no other course left
for the defendants but 10 proceed to
trial, unless they skould see At to
come In and plead guilty, which Is
hardly likely, for they deny the
existence Of a trust. The case Is
scheduled for trial In the March term,
which will not begin until March a..
Judge Denison will hear the case, In
all probability.
The contention OF the defendants
was that the answers filed by them in
the governments suit instituted in
Baltimore to dissolve the alleged
trust, rendered them immune from
prosecution under the criminal
statutes. Judge Denisons opinion
upsets this contention entirely. 1t
follows In part:
1T Is clear that the answers were
under oath and were demanded and
given in such a proceeding under the
antitrust act as the immunity statute
contemplates. The only question is
whether these answers constitute
testimony or evidence under oath
In obedience to subpoena
1T il also clear that the filing OF
the answer may be thought of as
something done in obedience to sub
pena, because 1t is required by law
as a step following upon the issue OF
a subpoena.
so, too, II cannot be doubted that
an answer under oath was, under the
old equity practice and in a proper
case, evidence, and often controlling
evidence, upon final disposition, OF an
equity suit.
1T follows that, without any distor-
ton of the language into grotesque or
unknown form or meaning, the re-
spondents can make it spell immun-
ity in this case: but il does not fol-
low, even under the rules of construc-
ton of criminal statutes, that re-
spondents must have favorable in
depreciation just because such in
depreciation Is possible. The true
criterion must be the fair and reason
able meaning, the sense In which 1t
IL probable that congress used the
chosen words.
1T Is not to be inferred that the
individual defendants were joined In
the equity suit only for the purpose
of obtaining discovery. The reason
able Inference is that they were join
ed SO as to obtain an effective In
junction Bills of discovery being
substantially discontinued, the result
ing evidential character of the answer
had practically disappeared. Skilled
equity counsel remember this histori-
cal, but obsolescent, function of the
answer; but probably laymen general
ly, as well as mos lawyers In the
code states and many lawyers in the
other states, would now be surprised
to be told that an answer Is testi-
mony. | cannot think that congress
so intended. 1t Is not likely that i'm
munity was intended to depend on
whether a pleader omitted to waive
an oath, or that II Is important
whether such omission was deliberate
or inadvertent
Il feel confident that the construc-
ton l have adopted will not cripple
any necessary governmental activity.
have not been able to conceive
case where 1t will be necessary to
get information regarding a crime by
filing bill and demanding answer
under oath.
Defendants, under such a bill as
was filed here, are not, with my con.
struction Of the immunity statute, in
danger OF losing any constitutional
right. They may absolutely refuse to