The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-02-12
THE ALLEGED FRAUDS IN THE COMPTROL-
LER'S OFFICE.

THE ALLEGED FRAUDS IN THE COMPTROI-
LER'S OFFICE.
CONTINUATION OF THE EXAMINATION OF JANIS b.
sNIrH-rEsrIxoNY OF JOHN BRANIaAN.
The preliminary examination Of James B. Smith, for
merly clerk in the Finance Department and now under
arrest charged with having derauded the city treasury,
resumed yesterday afternoon In the General
room, before Recorner Barnard. The attendance WAS
somewhat ja'ger hsn the preceding oocssop bnt the
audience wss entirely composed Of employees in the seve
raj departments Of the city government.
The counsel for the prosecution commenced the pro-
ceedrgs by calling Mr. Branigan 10 which the counsel
for the accused Obeced at that stage Of the proceed
ngs observing that he desired have the privilege and
the right under the statute Of examining the
planant in this csse-ComptrOller Flagg.
The Recorder said that the prosecution had righ:
in whatever order they at DO
So and lie did not feel bound TO dicae in the natter
Counsel for the accused maintained that he had the
right to examine the complainant at that time when II
might out that there ground Tor the prosecu
ton at all II would be wholly opposed the theory of
our government 10 allow An iOquoria proceeding 10 be
got In the way which the sci for the people pro-
posed to conduct this investigation In tina. way all
evil dspoeed person would have TO do would be get
person to issue warrant and examine everybody
in The city snd county Of New Yors and the close Of
the proceedings acknowledge that the complainant had
ground fer nakg the original complaint, and dismiss
Counsel for the prosecution maintained that he had
right TO produce his witnesses in his order The
anxiety 70 examine Mr. Flsgg sprung out of a matter
which be obe speake) perfectly understood and which
before the nation pcluoed the public would
uDe ers'and II he permitted conduct the exanina-
ton 10 the way which he had marked out for himself the
truth would be arrived at He (he counse intended TO
examine Nr Fagg but not e. that stage Of the
ing desrous to examine tie cerk of defendants
fret.
question which his Honor had decide was,
whether under government constituted as ours
fshy examination could be got up for criminal pur
posesr he (counseD understood the matter the whole
theory of our government opposed TO criminal
cufation upon mere suspicion. If proceeding like this
could be got up upon SUSPICION and witnesses
mined Tor the purpose Of raducng the character of the
parties then there nothing OF which government
could boast he understood that the object of the
prevent pquisitorai prosecution and supply
every person charged with crime in the preliminary stge
OF the examination with a responsible prosecutor to re
que that prosecutor TO appear and the paerpa
charge at the very outset OF the investigation. If that
IVES not the meaning Of the statute, it meant nothing IT.
on the strength OF vague charge preferred in prelim
nary complaint proceedings OF this kind could be ins
uted and every citizen brought here and subjected
ibquisition n midstS lie wanted TO know how tho
ends Of justice would be defeated by putting Mr. Fagg
the stand at that timer
Counsel said he prepared to carry the Comptroller
Though c.ose exann ition, which without casting
any reflection upoh his integrity, would AZ
would suumarily put end to this investigation and
sol the dischsrge Of the accused and show conclusive
y that the two persons charged wh defadng the city
were Innocent before the Court and the community
Counsel further observed that he had good be-
heve thar there were influences at worx-without iuapl
eating the acting District Aorney-no for the purpose Of
establishing this charge against these parties (5cca1se he
was satisfied this charge could never be established
against tbem) but under Of this examination get
opportunity 10 put men the stand and require them
TO disclose under oath, what secrets they might be pos
sessed Of
The Recorder stated that counsel had the power pro-
tect the witness iu n at event.
Counsel said his clients were desrous Of having the
fullest exsmipation OF this matter but should be
Quoted 70 an ingenious way.
HIS Honor said be da not deem prudent - interfere
with the prosecuting c oy debating 10 him 70 what
should be the order vi his proof.
Counsel Cor the accused-Then delivered TO
the tender merces OF prosecuting counsel who Is bound
by no official oath and who-altbuogh do not meau TO
say that is the morning principle in this casemay
theless desire 10 conduct this prosecution from desire 70
triumph
Counsel for the prosecution then called John Branvigan
Counsel for The accused objected TO his cuJence the
ground that this extra judicial proceeding until the
complainant was first examined
EVIDENCE or JOHN BRaSlGAN.
Jobn BTaDigaD, examined by counsel for prosecution
alter being sworn by the Recorder testified a. follow
Q. What Is your business. Mr.. bangan? A. am 1rs
general clerk Ia The Street Department.
Under whonN a. Charles Devlin, Street Commls
sioner.
Is that all your business' A. Yea, sir that's all my
O How long have you been such olerk9 A. Since his
appointment a. Street Commissioner
Y. When was THAR 4. On the 10th or 18th of June
last, think sir
q Have you been appointed clerk or attorney at any
time oeior, or since tna for Nj Fizplr;G A do not
recoIect; have been spoe that time,
when, as hear as you can recollectY A. Veil, eau
not remember exactly, sir but should think somo tmo
IN November; may not be accurate
Counsel for the sccusei--I there any written ap.
polnmeDt II had better be produced.
Counsel for the prosecution-We will see about that
by and by.
O. We're you any tinc and if So when, requested by
Mr. Fitzpatrick W collect assessment for paving Forty
ninth street, from the sixth TO the Eighth aveaue2 A.
Mo- got no request 20 collect II; he gave order,
and told me TO take IL with me % the Comptrolers Office
Counsel for the sccus.dNow We want 10 The order
10 the witposs) was in writngf A. Yes, sir.
state wha he said TO you when he delivered you the
order9
Counsel for the accused objected the question until
the order produced He would have to avail himself
every technical objection by Of the which
the prosecutor rad seon 1T 70 pursue He tbo District
Ah9rneyl was enhesyorng ny sarcn questions 70 wiad
web around tho witness and get answers which be did not
mean 70 give.
The Recorder observed that the mere snswer to the
question had nothing whatever TO do with tho contents Of
the written order, and therefore considered the question
aproper one.
Counsel for the people said that II counsel OF the ac
cused persisted making these objectons his clients hs
jefendsnts) would out ~ Court tso they
into IT, they received the $4,000 IN question impro
pery from the public treasury, and had not taken from
the intervention Of fraud the sooner the facts
to this community the better was nonsensica for the
gentleman the other side n talk about the OF
h client when be objected 10 bis beng estab.
lisbed by a member OF his household. The counsel
for the iendspt said that the genius OF institutions
such as TO psote the crminalprotect vme against
virtue ard against the just administration OF the law.
be- the acting Dstric Attorney, dia not make ou. case
hey ond suspicion, be would sbsbSoe u, bat
investigation OF the matter maze out against
the Defendants be would call upon his honor 70 bold them.
Counsel for the sccused stated that the writing handed 70
Mr. Byangan general power Of attorney, not refer
ing any specific work. that the witness might detail
which did not pertain to the matter at
ssuc.
Ills Homer Overrulcd the objection. Exception taken.
y What said 70 lou by Mr.. Fitzpatrick at the time
he gave the order2 have no recollection, sir, OF
any directions whatever.
2 Did he say anyth ng when be delivered you the
pspcrY A. do not remember, ar.
q Did he tell you 10 90 any where 9th h9 A. do not
remt mber the ecumstan :cs at all SIR specifically about
this particular case.
q Where cid you 60 with the papcrS A. 10 the Comp
troer's office.
tY A. Because knew that u there addressed
10.
o What did you say when you got 70 the Comptroler's
Office, and TO whom dsi you speak, Objected W.
O. Did you speak 70 anybody n Me Comptroller once'
A. I 90 not reCpliect, sr