New-York daily tribune., 1858-03-24

n 81 pfOgrt1-
Tbe coxnsel here read various authorities, showing
tnst the magistrate had power to compel the WINES
10 be swern and If he refused TO commit the rohsu-
uacious gentleman for a criminal Contempt. Nhat
This easel A dptnct charge ie here brought asshst
lanes b. Smith and John Fitzpatrick, and it is not IN
tie p0wer Of a mere witness ID come into Cont Dy
affidavit and reiuse 10 be sworn. he must De sworn
fret and then if he cannot answer :he distinct ques
,iop nut him under his direct personal oath without
eliminating himself the law will cone to his protec
tiop and he may properly refuse an answer 20 Tue
particular question. Mr.. Deylin ssears IN this am IN
Wit tha; he has been steady attendant upon tus IN
yestigaon. On the contrary, over aud over a. In
has he been called for in this nye-ugaon, and ne nag
been absent.
Mr. C;rahanl-He has been here Constantly.
Mr.. Whiting-Where was be lie wa not visible
in the Ioom. h.u
Mr Whjting-I affirm that he whs not here present
where We could Ock CpOn him, II he = party y Snl
suit. and the gentleman knows II. an chargeu ~
d is affidavit with having stddied 10 connec. ~ pere
I'm with the defense in this case, aud 10 BRING hn neie
he fore your Honor, study 10 come q nlm win Iu'
cefensel Why, MS own handwriting brings hln llete'
His own hnger.marks visible on these docnneht5 oe
fore me have brought him here. have had nothlnS
| 10 do with it, The stubborn facts revealed oy tne
papers before me have brought him here. Aud per-
hape he can explain how his name and hana"f1'ipE
are so surprisingly connected with these papers IL
he can il due 10 himself that he be sworn ana e1
| plain away this mystery. AID perhaps ne can. 90
| Lot know till | hear him testify. II ne
,be innocent man he calls himself in bis atiida,
W, whence the necessity Of h+ running 70 codL7ei
Would an innocent man IN his situation run to dnre
He il rot the party in this proceeding. Bu: ne
conscious guilt that j. his own affair. We mere see
a lI, minded public officer Of the Street Department
If The City OF NewYOrk, as soon a. ne su0peIieu
nth cssc Il, once run 10 counse-able counsel-thres
able counsel III he has been connected with toe p-fpe-
tratop Of this fraud then admit he Is real party
But be must he first TO ASCERTAIN It. Ii MS tesu
mopy will criminate him let him say So Inc law
az Nothinp g. him rom tc-Il-
fyine except conscious guilt. He swears, IN TINS AM
Cavr he is pocent VIII you refuse to swear man
who twears be is innocent las an innocent naa 10
light 10 refuse to be sworn Why, your Honor, the
stage never equaled this last performance oy psi
On the other side. Nor s there anything to equa II
in Mormonism, in point of novelty with al us diverse
capacity TO satisfy the NAV OF Brigham young Mn3
| IT, The Bible tells us the wicked flee when no man
pursueth. The single, distinct question here is sha
Mr.. Devlin be sworn That Is the question. in5 ne
refuses 10 do he says in his affidavit by advice OF
his counsel There il only one thing that can in any
way implicate MIR. Devlin If he signed the name o
Fnzparck to this check of co., and did 1t without
the permission of thzpdtrick then he ls hnpncatea
If DevIin forged that name, then Fitzpatrick VIII DC
discharged and Devln will at once become party
But until he is sworn and copfesses his agency, ne
cannot be held party here There is nothing Ia TINS
affidavit but mere opinions Not iact IL cohtaineo
in il.
| The Recorder-This application raises two impor-
| tant questions into whch would like some time to
EXAMINE though my present lmpre' sion against tue
motion.
| Mr. Grahem-I would like TO submit now what
| have to ray in reply to Mr.. Whiting.
| The RecOrder-Go on
Mr.. Graham then spoke at great length in general
terms about the gts guaranteed by the Constitution
of this State From this he pas ed TO the agency Oh
Mr. Fagg sprngng this prosecution, and his opJect
was TO hit Mr.. Devlin. The cour eel cited the pro-
vision in the Constitution which says that no man, 10
| a criminal case shall be compelled to be q witness
against himself.
The Recorder-Can he be witness till he IL sworn
Mr.. Graham-Yes; the moment he is called by a
| subpena he becomes witness.
The Recorder-My impression ID not till at er he is
sworn.
| Mr.. Graham proceeded, That is the very thing We
CON plain of-ha, they have not Informed Mr. Devhu
Of their intended accusation. Ihey assail him tn
the stiletto; they approach him with mufied tread
| and then strike Mr.. Devlin. The counsel here read
from various authorities in support OF MS motion, and
among others, cited the decision OF The People agt
Mcmahon in which he eaid it was held taat Tor the
purpose of applying rules of evidence TO be suspected
"s TO be charged Now aver that Mt Devnn IL MOI
s"9P0vtco, Dtt Ins whole pToseeutl0n ''mns al
bin alone And, therefore, Mr. Deyn ls perfectly JUS
tiff able in refusing to be trust there will be no
railroad speed in deciding this question but that his
Honor will take abundant time TO consider i.
After consultation, the was adjourned to
Tuesday next at III o'clock NJ, when the Recorder
| will render his decision on the question before him.