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

Case Of John j. Hicks.
The Supreme Court on the appeal reversed yesterday
forenoon the decision of Judge Morris, and held that
Mr. Hicks is bound to answer on the investigation be-
fore the Recorder relating to alleged frauds, and
dered that he be remanded to the custody Of the Sher
it, TJudge Morris, it will be recollected, after Mr.
Hcksbad been committed by the Recorder for refusing
TO be sworn, discharged Mr. II. on habeas corpus de-
Gliding that the Recorder did not have jurisdiction, and
the case was appealed to the General Term which has
decided as above The following is the opinion Of
Judge Roosevelt Of the General Term and contains it
is said the views entertained by the other members Of
the Court:
The People &c sst j. J. Hicks.
RCsEyELT, J-Ihe witness ncks WAS committed by the
Recorder aud discharged 10y Judge OF THIS Court
We are now in effect under the crfior which has been
issued called upon TO decide which Of these two officers
was right
egng himself 10 unustly deprived OF his liberty II s all
appear upon examination by the officer that the prRoaer
is detained custody " for any contempt specially ana
plainly charged in the commitment. by some Court officer
or body having authority TO commit for the contempt so
charged the law makes If his duty forthwith to remand
such party" . X $, SCI.
Prom this language as well a from the nature Of the
case it is obvious that the Legislature allowing hqJe
ccrghs did not intend that the officer issuing IT, should re-
wise the decision Of the committing magistrate and deter
mine whether the charged party had or had not been ac
tuay guilty OF the contempt alleged lie WAS SIMPLY 10
determine two questions
first. Whether On the face Of the commitment, a con
tempt specially and plainly charged and
Stoondiy Whether the officer whose name II bore, had
authority to commit in such cases
10 remove all doubt however, the Legislature in another
section of III act sec ~ expressly declared thar
nocour or officer on the return OF haJc corpus should
have power qure into the justice or propueiy OF any
commitment Tor contempt made by any coat officer or
body according law provided the contempt WAS spe
cialiy and plainly charged in the commitment, above
directed" See also CasSells case, . Hill, lo5.
Is the Recorder then, officer having authority to COM
nit for contempt such as that charged in the commitment
The statute in relation to the arrest and examination of
offenders T. r. s. 5O6J declares that Justices OF the 81
preme Court ROTder Of Cues and sundry other officers
designated in it, shall have power 10 issue process Tor the
apprehenson of persons charged with any oenss and
execute the pow and duties conferred IN that title And
it further provides lser ~ tnat whenever complaint
shall be made any such magistrate, that criminal OF
fl has been committed Il shall be the duty OF such
magistrate examine, OATH the complainant and my
witnesses who may be produced by hin. And Il II shan
apnear from such examination that any criminal ohense
has been committed the magssaie shall issue proper
warrant g. TO take the person accused e. and to bring
him before such sirae 10 DO dealt with according 10
law.
1bus il will be seen II is not only right but the duty Of
the Recorder, investigate criminal accusations But
how is be 10 investigate il he has power 10 compel the
ATTENDANCE of Witnesses 1t is SAID he may in,er)gaie
on oath the person preeTrng the complaint and the VII
nesses who may voluntarily submit themselves to hrs ex
animation H. however the witnesses shown, perhaps 70
have been actually present at the commission OF the Of
fence refuse TO volunteer must the course OF criminal JUS
ce for thatreason, stand still! Has the magistrate, al
though charged with duty compulsory power % ena
bic him 10 perform il Ii suit between private in
divduals be pending n another State, justice OF the
peace in this State may compel the attendance OF witness
otestfy in behalf OF sither party Il ). 3is And YET
if criminal proceeding before Ike mag srate be pend
ing in this State itself such power Il said existed in
behalf the people To such length indeed is the propo
stOn carried, that the magistrate himself from window
in the City Hall three persons together IN the street
one of whom he knew and the Others he did not AMI
murder actually perpetrated under his own eye he
and
as 10 the name of the murderer 10 enable him 70
issue a warrant for his apprehension.
such state Of the law If it existed, would argue gl
remssness the part of the legislature and indeed would
involve them in the absurdity of giving the Magistrate
the power Of issuing process for the Apprehension Of per-
sons accused and yet denying him the power OF issuing
summons require the attendance OF witnesses % enable
him determine whether the process OF est ought o.
suedand the further absurdy Of providing, under the
title of Fees OF Justices OF the Peace an allow Ance Tor
subpoena for each wines, Of SLY cents y X , ~
without adv authority to issue subpeus-and hnAly the
still further contradiction OF expressly enoining thA-
whenever any Magistrate shall issue any subpoena IN any
criminal proceeding trial he shall ndorse upon the back
thereof memorandum. showing whether the same was IS
sued for the people or for the prisoner
Itwould seem from thee provisions 10 % perfectly o.
vious that the legislature when hey gave the MAgl,s
the nver of examining into OF mes and arresting offend
supposed that by necessary application they had a'o
given him the authority necessary g. execute the 20" rs
and duties conferred" comprt heading IN the grant IN
power TO issue subpoena Tor the people in any Criminal
Ii IS also fundamental rule in the construction Of stat
well constitutions that the grant Of express
power carries with l. by necessary Implication every other
power necessary and proper TO the execution Of the power
expressly granted.
Assuming then that the magistrate had the power to con-
pei the attendance Of the witness and require him 10 be
sworn and testify, had be authority punish refusal On
the part of the witness to give evidence when actually
the presence OF the magistrate and If So in what manner
Under the head OF miscellaneous provisions respecting
criminal proceedings, Is enacted e. K ). 7i-, sec. +i
that any magistrate authorize exercise jurisdiction
in respect offences shall have the power TO preserve
order during any judicial proceedings and to punish for
conempts in the like and the like manner as provided
In the second chapter of the Revised Statutes in relation to
justices Of the psace I civil cases"
BY those provisional RS s4o sec soA justice
SslAorIed issue sabPea "s compel the sssAdancs d