New-York daily tribune., 1858-03-24
THE ALLEGED FRAUD IN THE CON
TROLLER 5 OFFICE.
CASE OE LANES b. SMITH.


and John Graham esq, conducting the defense ms
cause was open. a, II o clock IN the morning. ana
the whole time, from the openog OF the case do"h 10
the hour Of adjournment, was occupied with Discus
sop whether Mr.. Charles DevlD, sen., 'houid oe
Obliged 10 testify in the case
Alter all the parties slgIed ther Teaunes' v Po
ceed TO business, MT. W MI NJ sa4d' We P4'P'>' :"
swear Mr.. Devln. . ,,,,.. ,,.
MY Graham-Wait q little. Mr. Wm'mg, oeioie
Won BEGIN till N look over these minutes nave 10
nv hand. Mr.. Or .ham, having finished resdng MS
minutes rOe snd moved the Court 10 direct the p,9s
ecution that II vas their duly now 10 can up hI
Flagg The counsel alluded to ms motion 10 tne
Same effect at an earlier sage oI the
when he was overruled by the Court he th9ushI
the case had assumed turn now when, II is hono'
had discretion he was ustly called upon TO exercise
it, Mr.. Graham did not see what the prose 'ulion @
thus far had proved against those VINO were eNen
nominav the defendants in this action. The counsel
said his own opinion WAS now, and had Oeen lonl te
sart that the statute commands tna the complainant
should be called fret IN the order Oi VIII,
ne,ses The people have no right to counsel
here unless the 'Distn3t-Attorney appears. The
Court ia responsible for the conduct OF tins case
bv the prosecution. Unless the counsel tor the
prosecution is able TO state either puDhcy Or PVey
why Mr. Flagg should moi row be PrCduced, hsl5t
on biz being called up. If he is produced, we sha
bring 10 lc6t many np,r.an. facts, at which we have
before bnt,d. therefore insist that Mr. Flagg VINO
is the pillar Of this prosecution he now put upon the
stand.
Mr.. Wbting-I have nothing to cay in reply to the
gentleman -:
ion on this question, have examine IL care'1ly anu
have III addition consulted several eminent lawyers
including the judges of our higher Courts John hc-
Keon esq. and the Dstric.-Attorney Tor ihis County,
and all have concured in the correctness of my hrst
opinon-thst have no power TO direct the prosecu-
ton in what oider they shall examine their witnesses
NV own personal examr alton OF the law has but con-
irIned the opinion | at fret expressed. cannot,
therefore interfere with the counsel fr the people in
this matter though think /. might expedite business
should Mr. Whiting see 6t to call up Mr.. flagg.
must however, refuse the motion
Mr. Whitibg-Mr. DevliD, will you be sworn
MI Graham-No, he Eill not; wait q little, sir, if
YOU please. / object, the counsel Ot MIR. Devlin,
that he be now sworn.
Mr. Whitipg-Do understand the gentleman to say
that he objects, as Devhns COUNSEL tha' lie oe no"
Mr. Graham-Thst is what l say, sir, and that is
the position assume. 1t is an extremely responsible
duty the part of counsel to take the conrse no"
propose to take.
Alter some additional general SeeSdSrSftfqgBaa fqgaa 9
fpSiin's affidavit, satns the grounds why he should
not be sworn in this case.
Mr.. Whiting-I object to the reading of Devlns af-
fdayit He may advise his client not to be sworn,
and take all the responsibility of such advice But
that an affidavit should be produced here from Devln
himself giving reason why he should not be sworo,
strikes Inc as preposterous: DeVn ls mere "i'ness'
he is O. patty t. the action.
The RecOrdeT-Well, cannot say what reasons the
affidavit eontains until hear them.
Mr. Graham-Mr Devln Is not witness here lie
il an actual party To this action, and has been all the
tme In the first place. it is necessary to show that lie
il party to this investigation.
The Recorder to Mr.. Whting-l shall have to hesr
the affidavit read. Mr. Graham have you any au-
thortes on the point confess, notwithstanding, 1t
str kes me as a rather novel proceeding.
Mr.. Graham-I have authorities Oh the point
MI Graham was then permitted to read the atdsvit,
Before the Hon. GEORGE q. BAXARD. Recorder
III the matter Of the complain, OF AIaiS fS!ss James
s% ad coan1 }%aS Of Nt o,t So ChaTts 6ey1 Of said
city being duly sworn GsPIe,h @ % sIe sy h. been
the purpose nder the petense OF examining
to ~ cndesvong to hnd out facts which i Is Thought
may be and are intended be used ipet The in
some charge subject him to criuina pnsby
that this deopent has been present at the Ss beI ci r
been 9dos eao On 'hG par, c M coI.s @ Gs dpPPn I in
way with the issuing or recP; OF the ecmt. ~nch
Alderman aud Comuousty the City of New.YoIk Though
result Of the alleged conspiracy Seetween the aid
professional direction of hess s~e and
sad EXAMINATION thus ia and who have advised this deroneu,
that though nominal he is evidently an actual aud real par
il might furnish links chain OF evidence TO be used against
him. him oestiy witness upon said examination That
but advised by HE said COUNSEL ths, with such tact.
JsIiecy i'll themseyes he might testify TO- aud
which the prosecution mh not be able 70 establish y ay on.f
coupled with facts might proceed from the ms
kind might be made against him That this dePonent
been advised further by his said conn'e that beius he
mAsty object Of suspicion on the part OF the pfosecu
ti0n not Of direct charge he not bound 10 present hi sc a'
plant and thai be a,ion OF his Constitutional aud
legal ghts ask compel hu in to All assist
ding which is c0'eTty an Hten'si3I ss9st 5imsI
Sworn before me thi. sd day cf March, 1855
ANDREW J. SMITH, Commis.ion,T Of Deeds
Mrs. Whtlng-That affidavit gees on file, no doubt.
Mr. GIaham-I suppose it does In addition to the
foregoing affidavit, Mr.. Graham called aten ion of
the Count to what the counsel regarded as cumulative
evidence that hr. Devlin was the actual party
aimed at IN this proceeding, and that therefore he
patty 10 il. lie alluded to the spn, Of the iater
Iogatories put by Mr.. Whiting TO Mr.. Bradford and
Mr. Ca6y ihp st of whom the counsel designated as
another OF the pillars of this prosecution. We shall
be able to show, said Mr. Graham, if deemed mpor-
tant that an appCat on has been m,de to the Rrosd
way Bank for evidence connecting Mr.. Deylin With
this accusation, aud that this whole proceeding,
from the FIRST has mesnt Charles Devin, aud nobodp
else
MI Wling--I don't mean to argue this question.
MI GrahsIn-lIave you any facts Ia rebuttdl OF
those contained in this affidavit
Mr. Whlipg-We never heard of your affidavit till
this morning. How could we have had time 10 collect
rebutting facts
Mr. Grabam-we'll give you an adjournment.
Mr.. Whiting-l don't want any want to go on.
The Rscorder-But there are two important ques.
uons raised here Mr.. Whiting involving cons tutonal
10 consider
Mr.. Whiting-What question There is no, a
question about It. Their whole affidavit consists of
mentioned i'll il.
Ihe kecorder-But the point raised here is one OF
suCh gIaNly IN the event of an erroneous Judgment
by me- which do not seiiously apprehend however
because am very esar on il now that for the sake
oi greater safety prefer some little time 10 examine
II. Mistaken acton at this stage Of the case might
subJtc CT me TO heavy pecupisry damages
Mr.. Whiting then Proposed to conmen, nm the st.,a-
meIts contained III the affidavit
MI Graham objected, saying he must 90 into other
matters before he could combat the dsyit i,ssH
N AZ