The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-03-24
MLEeED FRAUDS IN TIVE C0MsTRollta'S OFFICE.
Motion to Refuse Charles Dcvnn 70 bs >wevn
ns a Witness In the Smith and Fit1patrich
ExAmInssiON-AnE Excltlsg Deba,-.

Motion 10 Refuse Charles Dcvi,n To bs sworn
ns a Witness In the smith and Fitzpatrick
ExamInsssOs-An Exclti-g Dcbas-.
Tho preliminary examination of James B Smith, whO
is charged with defraodDg the city treasury OF $40 o0o
whch has been going before the Recorder for
time, vos resumed yesterday.
Counsel for the prosecution expressed his desre 10
anime Cbs,les Devrn, wh) vss present.
Counsel for the accused opposed the NOTION urging hs
preliminary request that the complainant Mr. F1agg Who
sfso present should ored for cross examioao,
for by dorg the counsel expected elicit lnpotan.
facts and to learn tic OF tho charge preferred
against the defendant All the witnesses previously eI
amped had failed 70 establish ths charge preferred by
the Comptroller against Smith and ENxpatrics
The Recorder sad hs. since he had rendered hs dec
tOn declining 10 dictate 70 the prosecution in the lucs
of their case he examined authorities very thoroughly
nnecor With judges Of the Supreme Cour; From tia:
investigation his Honor tbougft would be mproper for
him to dictate to the prosecution, knowing what they
intended to prove
Counsel for the prosecution then urged his notion n
have Mr. Deviin sworn q wNness which was ohjsctsd
the part Of counsel for Mr.. smith, who also an
nouneed himself counsel for Chas Dsvn, who had
aimed at from the nrst, and much party 10
tbis prosecution smith OF Fitzpatrick.
Council for Mr.. Devlin proposed 70 read an afiavt
sbo sing Why be should not De sworn witness which
OppOPeu CDaDSol Oh the 0Ller she.
TIE per n,ttcd the counsel to resd the sfa-
w Of Charles Devlin, copy Of which IA snoloned-
AFFIDAVIT CHARLES pEvrIS.
c., og s1fcrs d Hon Gee 9eo'fr T 9 Barnard hesordsr
city being duly sn%n dspose!h and sash-lha he has
the purpose nder pretsncs OF ssana
hes'es to sustain ~ of endeavorDg 70 and out facts
ph ate his on come criminal charge or subject
Sssn SS Of ~n.s.s as M ns S
support e sae compliant and TIA there has been stuaioas
course Of his inquiries c6nec: tins depops me way
%a he s ss S Ss Sms sA S M
Aide, and q nsy OF the CITY of Pork through
S ' am s nS snd 0cnsRi SsSa BE
put .s and Sd, The sd
attended The said eysminstoa thus far and who have
ma
pom said ernminaton that this dcpouent entirely In
he sad x sas fsc. er-c as IN
nselveS as be might testify TO- and which prosecution
1I se fs 1nss ss
s 2, sm s this S sss
hc.p advised futher by bis said COUNSEL ths being he
eu"n OF drec. charge Sc rot bound 70 present m
set as witness npon he inscssa'on pr. upon he
u nal and gal rabts ask or compel him any way aid
or assi1' in proceeding which is eoTresy e S,Gsa,ion
sworn before me, this 2sd day Of March 1855. ANDREW
ehnH Commissioner Of Deeds
Counsel urged biz the fact that the admis
sion question propoupded 10 Mr. Bradford and ques-
ons 30 other witnesses, made Mr.. Devn carly this
proceeding Application had been made N the Bowe-
~ Rank Tor information respecting Mr.. Devhs, which
that institute declined TO give and uBtr,pg efforts had
been made to counsel for the prosecution and ne A ha;
be wanted toexsmDc Mr. Devin relation IN endorsing
checks connected with the controversy. There was no
shisg in the sHidAyn necessary to be replied to-
Tn. Recorder coin ;ided With counse for prosocu
tcn but nssmuch the question a serious one the
hasry determ Of which would subject him 70 pecu
mary damages should his Hnnor lprisoB Mr. Devli he
IN have tn
Counsel for Mr Dovl:n sad tnat his OPP ,nept declined
20 repy &c tic affidavit nc wished close the argument
usual thing Tor whpess 10 decline 10 be The only
of the hind the Of Hicks, the Court hold
ing that the witness was bound to be Counsel
rfad authorities 10 show that refusal OF witness % be
twoTn was conteDp. OF Court and subjected the party
TO Imprisonment The speaker affirmed that the bonds
wh were tho basis of this h.a been sgusi by
T~vip aud question were put 10 HIM reference 70
bis connects, with smith AID FITZPATRICK In this alleged
fraud he Tod The privilege of declining 70 srwcY them
Ills Honor would not stop lhs orderly proceedings
OF court Of lust,se by excusing witness
nair sinca contained pothne but his knowiodse and
bsref not facts. Mr. D~vln was not present while q
large amount OF testimony taken, was there
stnof effort on the part @ the prosecution 10 impucste
M. Dryin. His own myers made him q necessary WI.
in ec ting the truth for his name was on all tho
spers connected with u matter an he should have an
opportunity Of explaining his position. What asked tho
speaker the object Of the pure Minded honorable
public tfccr OF the Stree, Depsrtmspt, the momsnt ne
scr Of the case, andI mpioy tnros oonnse In
defiance q justice, truth and duty, and dsrec; tho
rt@msnc- ot As one Of the heads Of the departments
through which this fraud had been perpe,ra-d he sad
10 bis Honor, "T not be sworn because my abe
tel me had better not" He justified In dscln
Ing TO be sworn only by oonscious quit Counsel proceed
ed In ingerious and eloquent dissecs the
affidavit arguing that n I-vn innocent Of erin
naty he would impose no objection n bong examined
OF tho matter would be found In Scripture The wicked
uoc'h when no man pursoeh but the righteous Is ~ bold
sssa. so I T .Sosd ~ hame me- 90 tns
neio 10 explain how he " endorse them and he
failed 10 give satisfactory explanation, be should be com
The Recorder said that on this application rose Two
important questions nrst, whether q man could be
deprsed cf constitutional right in projecting him
self frcm being sworn when he might think
dent an attemrt was made 70 inpicate him criminal
oficroe; and secondly, whsther, be may be charged
from sxearng. lie deemed II prudent 70 adjourn the
cGe, order N eyamne the question carefully. HIS
Honor presen, tmprs that ur neyln should be
Kvorn In order 10 expedite the examination the question
should be settled Of once for the taking 81 further est
tnony would he imped.d While II renamed undetermined.
Council for Mr. Devlin sad b. had ncs bad the op
potnbhy " present The legal grounds in support Of
bg notion, and desired W he beard before the deci
sion Was rendered. lie then proseeied, in lengthy
and ctquent argument, 10 show ths: Mr. Devin oocu-
pied The siourd of accused party, and that unless
rcme rule Of law coald be cited which showed that
sci had right TO turn BIN from party INTO witness
tovarcs an accusation which made at himself the
Court had right this prosecution. The learn
ed council anmaovcrted In screening language agains:
The conduct c he Comptroller IN tbs case, Affirming tina;
ffe psfsai Of meeting The accused openly aud fairly,
Put himself into the bra~ny ~ his counsel Ike
rev born babe TO DO dandcd about at hs caprice and
pleasure The speaker in brilliant and forcble argn-
ert maintained that the sixth recon Of the lat article
Of ibe State CONSTITUTION said tst "No shall be sub
ected 70 10 twice put IN jeopardy for the afence,
nor rhal he be compelled, in any criminal 10 be
witness against himself" lie -howe ths. tho laws Of he
state were framed in accordance with that provision of
the constitution and ,bat su-pecied Iuiy In reality
accused party and consequently could lot be examined
under oath
AZ e CONCLUSION N the councils speech the Recorder
afcr conversirs with counsel both sdos who
gased on certain dsys ad ourrod tho Investigation r ncxt
tuesday nj II O'Clock, when he III de,ide whether Mr..
Iylp should be not He also ntimssed that he
would sit that day until the mstser anally DISPOSED
p.-the csc having been before hu for be last t~o
months Counsel for Mr.. Devn incidentally observed
thst should The Reccrder decide asans him. he would
bring the case 10 the Court OF App ais forthwith.
The of1ce of he Recorder crowded by city oc,ss,
who were inteneely interested in the proceedings.
city Intelligence.
IN Murov w. GRAY. I'VE ALLEGED ApoRuoxrsr BiuFD