New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-05-14

vi'rosss % eve evidence o. suy is dpeldicg oefre
hussf o. any OF irl on their reti ~ nes-c
to aftad, 10 conformity o-uh sChpsna. al9 on comps
ten' tts-oFY = - ssr-o1 ~ no r,e ~, n -
tmony nfsuci r'ne-. 3. ul,s 3 Is crowded that the
ins.cf han tyoporss 70 .ca IN ,hma-i = c'n1e'
thf a''sudrrre % -uci rilr0 end fIesg 90 soc @'
BE- shs risre 10 ha sworn a - frn rro-erbei bv 'aT
OFT arslrsr cry pfrr'rt p, - res' 'u - ne llrT
a. hos ir rlr TO ri-udfi - 30 n,ke o,lh s'rsrs ,ri.
hmor, q sue' w,ir'-- ~ ~ ut'4~t .sr'h la.n'9
u9y. tT warrant; n,i. such vnC5 q tia al 81 tie
county Sc. NO. - submit. 20 bssr'rn Or - lnsFfr.
NJ d0rt- then h serms 10 mo- can renliq 'fi M IA
cordsr + hs vas h. ctfs - WIS., si'ssel q 'P M
feTaly ~ tie testimony 0f ihe ~nes> HEX and -
dcial preceding was lsrfuv pending bss.rr hiu-i1
Other words If compliant had baen made hiT 'h1
criminal onse had been ,eTperstsi-was Authorized tn
investigate the charge ard ~th that NeE 70 csnpel the
wines on pain q imprisonment 10 disclose h knowedse
on the subject
Was then compl'n, such as contemplated By the stat
ute. duly made 10 the Recorder
No particular form. Il i conceded. was Eecessary-so
ths Of writing q parol statement such
sny cien without professional ala might make provided
the set charged criminal oen-e ali the law re
CURED. Such. believe IS the universal underst ancng
and the everyday practice.
What then was the complain, IN this cssel The Re-
corder cerfes that toe Controller Of the City aopsared
before him ard made complaint that certain crmnao Of
lenses 20 wit criminal frauds upon the Corporation OF the
City Of New York and the obtaining nv criminal means
money from the Treasury Of SAFE City, had been committed
in the CITY OF New orb by divers persons unknown
That the Controller admitting the certificate in that re-
spect 10 be review did substantially make the com
psint certified is proved 10y his affidavit; and the
only point therefore suggested by the return and remain
ing TO be considered il do the planned Of proved
constitute in law criminal ofensel =
BY the 32 section OF the general provisions concerning
crimes and their punishment e. X :. 1922 il declared
that the terms crime Oiense when used in this chap
ter or any other statute shall be construed TO mean any
ofense for which criminal punishment may ny law be
inflicted Frauds affecting the public NAV in certain cases
be punished crimnsy. at common law-tThe People
against Stone Wend- ls2l And under the statute. e
X s OIL every person who with intent 10 cheat de
laytnu u hx guns anf
7O9 to cities and corporations generally shall desgnedy
by color OF any false token writing by other false
prcense obtain the signature Of any person to any written
instrument or obtain from any person any money PERSONA
property valuable thing, upon conviction thereof shall
be punishment by Imprisonment, &c.
There is then class Of frauds which not only crim
nal in their nature but criminal in law and punishable by
the Courts As criminal oenses and class therefore, of
which the Recorder and the other magistrates referred to-
had jurisdiction far at least 10 inquire into their pro
babe commission and their probable perpetrator and to
order his arrest and triai
Again it is objected that the Controller in his complaint
accuses no particular persons by The law to set the
proceeding in motion requires such specification IL
simply provides that complaint shall be made that crm
nal oHense has been committed no matter by whom One
of the very objects Of the preliminary inquiry may be and
we know frequently is 10 dSc5 t0ia the name of the perpe
traitor well the other particulars Of the alleged o5nSe
To this end Witnesses are to be produced by That on the
part Of the complainant They are 10 be produced rs wit
nesses are usually produced by plaintiffs and defendants in
civil suits-by request if willing. by subpoena If mott
being the universal understanding that witness attending
produced by' the party II is their testimony which -
not only TO cOroborae but TO give certainty to the aecu
sson and determine whose door it should be laid
All the complainant make oath to may be that the act
has been done, and that A. b. and C. d., if nterrogasd
tell who did it, For aught that appears thus N the
pesent case was precisely the position OF Mr. Hicks and
the only question intended TO be put to him was DO you
know the handwriting of certain fraudulent voucher
Can't be possible that the witness in such case can told
his and in effect say to the magistrate first tell me
who did IT, and then will tell yoH'
Allow such an objection on the part OF a witness to pre-
vail ard murderer perpetrang his bloody deed IN oro'
day in the presence Of dozen bysanders might. a
ready suggested walk the streets untouched II eleven OF
those bystander preerrng the plant ignorant OF
his name and the twelfth, who kneg it, refused unless CO.
creed 20 make the disclosure.
Much has been said Of the supposed nqulitonh charac
ter Of the proposed examination and the Recorder in the
rhetorical language Of counsel has been painted az boring
ATTEMPTING 10 bore, sort OF judicial augur INTO the
bosom oth@ wines from that sacred repository
the secret thoughts and purposes which IL owner a. al
American freeman had right TO veil from the eye, OF al
but the Omnisoent The history Of the long since buried
and Justly execrated Of Star Chamber his also been
cited by way of warning Were this court to yield to such
appeals every party and every witness, ia civ IL a well as
in criminal proceedings, might with good, and in most
Instances much better grounds claim exemption equally
in the possession Of wines not imPcatng himself and
which the public good demands the disclosure eau chal
lenge sympathy and It seems {" me is entitled TO no
favor There may be considerations, il can he well con-
ceved which should Induce Uness. or ct least justify
linn not TO volunteer but when agistrat, ndisputtbly
possessing criminal jurisdiction, after objection and argu
-tance in refusal unless satisfactorily explained
more of obsfnacy than the assertion of right.
Having arrived at the conclusion that the Recorder had
the wfu authority to require the witness to testify and
20 enforce his decision If necessary by imprisonment,
nothng lo for but remand the witness TO the
ody tn Sheriff there to remain until BE- shall submit to
As consequence the order appealed FROM dscharging
the said John j. Hicks, Is reversed.
Tie following opinion furnished by Judge Ed
wards:
Tohn I Tfets
EDWARDS J-The return 10 the certiOari shows that on
the sIt of March 1853 the Controller Of the City Of New
York appeared before the Recorder and upon his oath
stated hs in his official capacity he had the custody care
snd control Of document vouchers and papers relating to
the financial department of the City, and that from such
documents, and from Information received from various
qu,rer. which information he believed 10 be true frauds
10 very large amount had been committed upon the bic
treasury Of the CITY which frauds he believed be criminal
I'm their nature and character lie further stated that there
was one wherein the Corporation Of the City he believed.
had been dsfauded out of OF money which he speci
fed 10y the rendering Of false and fraudulent account
that the bin hid been rendered for greater amount than
should have been charged 10 the Corporation and that the
money was drawn out OF the City Treasury by virtue OF
warnnt founded upon such false and fraudulent account
and he further stated that he had 20 believe and
did BE- eve that various other frauds criminal character
had been perpeed upon the Corporation in the prsenta
! ton OF bills.
After this complaint was sworn TO- the Recorder issued
subpena directed the respondent, cOmmanding him %
ann Ar before the Recorder time and place therein
,taed testify the truth and give evidence according to
ms knoWledge, certin matter On the complaint OF the
Controller aud verified by tie oath OF himself and others
alleging and charging the commission OF certn criminal
ofenses within the City OF New York.
The responds Mt refused appear commanded by the
subpoena and therefore the Recorder issued attachment
by virtue OF which the respondent brought before the
Recorder and upon refusal 20 be and testify was al
Judged TO be guilty Of criminal contempt ana was com
ntted prison until ne should submit De sworn and ss
y or until he should be discharged By dse curse OF law
The first objection taken upon the argument Of the eert
that the Court as then organized could not en-
niursf Of