
    IN THE MATTER OF W. WAYNE, WITNESS BEFORE THE GRAND JURY.
    July 7, 1914.
    
      Evidence^Cóñfideniiál' 'cbvv>nunications;prip'iie'ge‘ óf'ibitnéss—Con-tempt: >< Information igíyén ii journalist’ as= -tlie':-basis óf'¡ newspaper articles*5is, not privileged,; and.. Jiis .r.etusal; to disclose!id ..ai grand; a diy' t}xe sofurqe; ,of .su^,,information would ,in;, a. .proper _ case,.}$ ¡ pOTRempi of cour.t. ., , , ■ ,
    
      'investigation by grand] jury:. witness’, claim -of privilege; ¿ontémpt in refusal ,to answer questions.
    
      E. W. Sutton (Smith. Warren, Ilernenway cfe Sutton with Him)" for'respondent. '
    
      J.W. ' Thiómpsóii, " Assistant’' U. "" S. Attorney’,1 *' for " tHé United States.- .^' ',J" '-y-''11.'
   'Clemons, X1 . t ‘n.i t,

The grand'jury having voted bina matter ,® i- J -u Í.HJ.S : V '■ • *! r I • Vt u,nde¡r consideration, its finding was reported, to have copie, ¡public,, in, advance, of „■ its- ¡being regularly.> reported to the court;. land on an investigation by that body as to who; if1 any, of1 Its1 ñiéiribbrs’ had ’■ violated his !oáth ; ,of 1 secrecy, W. Wayhb,' the1 cit^ editor bf'a Hbiíblúlü daily newspaper. from whom a previous Witness! had testified to haying obtained, the information thus prematurely reported; was called and asked foe name of his informant. He declined to answer. The foreman of the grand jury reported the facts to foe' presiding judge, and .in open court made a statement thereof in substance as above. The reluctant witness then said, in reply to the court’s request, for the reason for such refusal: ‘ \ .■'

“The same as would be foe reason of anv gentleman of foe jury against giving his private business, secrets pub-. us to get out a newspaper; and if we bréak bonfidfence with hcity. It is bur soürcei bf ñétvs that wé. rely on to enable the source of news we would lose all of our sources and would have no newspaper.
“It is a matter of information, was given to me in secrecy, — it is a matter of honor, aside from the newspaper’s standpoint.”

In the opinion of the court, the position of the witness is untenable. Though there is a canon of journalistic ethics forbidding the disclosure of a newspaper’s sources of information, — a canon worthy of respect and undoubtedly well-founded, it is subject to a qualification: It must yield when in conflict with the interests of justice, — the private interests involved must yield to the interests of the public.

This principle has been applied by this court in the case of United States v. Kekauoha, 3 U. S. Dist. Ct. Haw. 259, involving communications made by a church member to church officials. In this case it was said by Judge Dole:

“No private or social or religious obligations can dispense with that universal one which lies on every member of society to divulge all information in regard to crimes against the public interests, except as provided by law, in the recognition of certain communications which are privileged, because of the sentiment that to compel testimony under the circumstances would be of more prejudice than value to the public. These privileged communications include those made between attorney and client, husband and wife, physician and patient, clergyman and penitent, and some others.” Id. 261.

And it is not within the power of a court to add to the list of communications which are privileged. Even the privilege as to communications between priest and penitent required a statute for its foundation. Id.; 4 Wigmore, Evidence, sec. 2394.

And the principle has been enforced specifically as to communications to newspapers and their representatives. 4 Wigmore, Evidence, 3186, sec. 2286, and note 7, citing, inter alia, the Parnell Commission’s Proceedings, and United States v. Shriver.

“Such a rule [of privilege] would be in violation of a sound public policy.” Smith’s Digest of Precedents of Privilege of Congress (1894), 828, 848, 856, reporting the Shriver case, supra.

Thus, in Ex parte Lawrence, 116 Cal. 298, 48 Pac. 124, a newspaper reporter was held to be in contempt of legislative authority in refusing to disclose to a state senate committee the names of persons from whom he had received information touching a charge of improper conduct of senators then under investigation. See also People v. Durrant. 116 Cal. 179, 48 Pac. 75, 86, in which was dismissed a similar claim of privilege, with the statement that “the claim scarcely merits comment.”

“For 300 years it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence. We may start, in examining the various claims of exemption, with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional and are so many derogations from a positive general rule.” 4 Wigmore, Evidence, 2965, sec. 2192.
“In general, the mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relation, does not create a privilege. This rule is not questioned to-day. No pledge of privacy, nor oath of secrecy, can avail against demand for the truth in a court of justice. . . . Accordingly, a confidential communication to a clerk, to a trustee, to a commercial agency, to a banker, to a journalist, or to any other person not holding one of the specified relations hereafter considered, is not privileged from disclosure.” Id. 3186-3187, sec. 2286.

The decision of the supreme court of Georgia, in the case of Plunkett v. Hamilton, 136 Ga. 72, 70 S. E. 781, 35 L. R. A. (N. S.) 583, follows the California case of Lawrence, above cited, and also the New York case of People v. Fancher, 4 Thomp. & C. 467. The court in the latter case sustained an imprisonment for contempt for refusal to give the name'1 of; the'writer-of a libel; published «in airievfspaper.

In a-ease in the New Jersey supreme c'ourt, of* a witness before the grand jury, who had testified'’that lie knew the name 'óf’ the persok who ’ fufriiáhed’ the' information'1 Upon which •tíe'ñsÜT Written a' óertáiíf riéwspáp'er • article,'' bút"’re-fused''to' 1 give ' the náine?' for' reasons' siíhilár1 tó' those advanced : by ‘ Mr?' Wayne,' above) ■ the privilege' there’ clarified was 'characterised by the' appellate; court as ''a*'privilege which'finds' no counteñárice in’ th'e laW,” a privilege '.“far-reaching in its effect, arid detrimental' to the 'due adiniriis-tration of the law." In re Grunow, 85 Atl. 1011, 1012. See 4 Jones, Commentaries on Evidence, 620-621, sec. 771.

See also, 7 A. & E. Enc. L., 2 ed. 47-48, par 3 (a), for a valuable suggestion; 'and ghnétally'as tó! the1 court's control ovér. witriésses before the grand jury:" United States v Caton, 25 Fed. Cas. 350, No. 14,758; 1 Cranch. C. C. 150; In re Rogers, 62 Pac. (Cal.), 47; Heard v. Pierce, 8 Cush. (Mass.) 339, 342; In re Taylor, 28 N. Y. Supp. 500, 501.

The Maryland statute stands aloné'in making such communications privileged. "'It is characterized by Mr. ’^ig-ra ore' as an “enactment [which] will probably remain unique."’ 4 Wigmore, Evidence, 3187, n. 7. detestable in . substance

«In Consideration of the' above authorities, contrary to Which -no authorities have been ’found, the witness here must answer the proposed qúéstion, Of. stand committed for contempt of court.

NOTE: After the court had made its opinion as above, Mr. Wayne immediately purged.himself of-any possible, contempt by not only giying the desired,information but producing his informant as a witness before the grand jury.  