The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-04-03
ALLEGED FRAUDS IN THE coMpTROllsRs OFFICE.

Continuation or the Examination OF Smith
and Fitzpatrick Opinion Of the Recorder
Relative 20 the Examination or Charles
Devlin and Comptroller Ffagy-Cross-exa-
animation OF the Comptroller, sc.
Tie preliminary examination OF JAS D. Smith, who is
charged with defraudng the city of $4,000 while engaged
in the Finance Department resumed Tuesday before
Recorder Barnard, al his Office The parties Interested
present! and awaited his Honors decision the
question whether Chas. Devn should be sworn with
interest The proceedings by his Hsnor
reading the subjoned decision -
The People rs. James b. SmiA and John Fitzpatrick
The prosecution having called Charles Devln witness
his counsel objects 70 bis being sworn as SUCH upon the
therefore comes within the provisions CT section o. article
Of the constitution Of this State. The tenor and dri OF
are referred establishing the facts constituting said
Dcvln the real party defendant That section Of the
any criminal TO be witness against himself" This
applies to the parties charged and 70 others.
tany could have been the intent OF the trainers OF
the constitution that persons having cognzance OF facts
necessary fer the support Of criminal prosecution should
be able TO shed the accused by preventing themselves
from being witnesses, upon affidavit that they be-
Leve themselves to be the persons in reality sought
be charged. Such provision might have the effect
n many, not in all, important and difficult
cases Of coeging the administration OF justice degree
highly unfavorabe 10 the interests Of the public 1t
would besides collateral issue to whether such
0efen0ant6 IL,
any case should clearly and armatiyeiy appear from
the examination OF the witnesses for the people that
particular person. other than the parties named the
In reality intended 70 DO reached such person would
be within the purvew Of the above provisions Of the
siituon Such, however, not the case here the tes
moDy does not show that said Devn the real party de-
PENDANT, and the matter stands, or opinion
that he Ia a competent witness. has been customary
preliminary examinations to put the complainant on
the stand the first Witness as he Is supposed 10 know
about the matter and all the principal facts connect
cd with il than any other person Where his evidence
has been aken can then be seem in the great majority
OF cases, whether the charge be sustained aud II It
can what ether Witnesses and testimony be requiste2
This however, is not matter OF right the part Of the
accused, but matter Of discretion with the magistrate
In this case the carrying Of the prosecution has been
committed TO the OF q gentleman Of great legal
ability and eminence, have thus far not deemed
II incumbent to interfere with his views and mode
of conducting the examination. number Of witnesses
have been examined and . large amount OF testimony
TAKEN without the complainant having been put the
stand 1t this stage Of the examination that Charles
DevHn Is called a witness for the prosecution
and that hs council objects to his being sworn and
produces affidavit made by said Devlin, iu which
he that this prosecution, although nominally
against two others, is in reality aimed against HIMSELF
and tina. the brought for the express pur
pose Of involving the said Devn in difficulties, if not TO
lay the basis of criminal charge against hmand also
that the whole tenor and drift Of the testimony thus
far shown that such Ia tho object Of the prosecution The
genius and spirit OF the laws OF this State s that all per-
high and low Innocent or guilty honored degrad
ed shall alike receive the protection and justice.
The laws throw around every person in the community
safeguards and invests them with mmunites which
should a. ali lines be respected. Where then, In
exannaiop 1t is alleged that proposed witness stan Is
in such petition regards the prosecution sugges Is
that he is PARTY ~ be ultimately affected thereby, and
that that prosecution get foot by complainant solely
by complainant acting with others; is but fair and
Just and in accordance with the general spirit Of laws
ai such person be entitled not only 10 have the com
painan examined bu, also the whole OF the prose-
culon gone through with that he may know the full
extent Of the charges and evidence which are TO be
brought before he himself shall be aud examined
for 1t should clearly appear by such exanDaon that
the proposed witness the real party aimed by the
prosecution, think that IN accordance with my views
before expressed, he could not be compelled testify
Criminal courts not instituted for the purpose Of OBJ
tarirg private ends Is il the duty OF criminal magis
trates district attorneys To condu prosecutions
70 obtain in all cases, within the range Of possibility
conviction without regard TO the real facts OF the and
contrary TO their honest views butte conduct them with all
fairness towards the accused in such that the
truth be in favor Of the prosecution in favor OF the
defendant shall preoonnate Under the circumstances
OF this case Is but fair and lust to said Dsylin a, we'll
emiuently proper that the complainant, Mr. Flagg,
should be examined before said Devln as not only to
give Mr. Devln all the protection that he rghtfully
require In this behalf but also to relieve the prosecution
from any imputson Of epdeavoripg, by underbaud aud
unfair practices, 10 compel man. In effect, To testify
against himself In criminal prosecution. The complain
being present easily procured and ccemng
DO injustice can Arbe - the cause OF the people from pur
suing this stage the customary mode OF procedure IN
these examinstons direct that the complainant be placed
on The stand for cross examination before Mr. Devn be
These remarks OF course do not apply where the
plsinant cannot be found produced.
March 30. 1858 GEORGE G BARNARD, Recorder.
CROSS EXAMINATION OF CONTROLLER FLAGd.
Counsel for the defendants called Comptroller Flagg
who, after being sworn, testified as follows
O Mr. Fagg, when did you arst learn the facts which
you up the basis Of the present charge 10 this
conspiracy to defraud the city of ooo0 A. cannot
rccoect the precise day, but think it at the FIRST meet
ing of the Committee Frauds Of the Board OF Council
men, Of which Mr. Genet is chairman got the intmaton
that there ives fraud before went there but did not
get particulars this about six ago the