The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-06-16

taned and held by him solely in his capacity as such
counsel That prior 70 receiving said paper deponenl
had been retained counsel for said Cole, who was
arrested charge of murder That deponent received
said paper solely under the directions of said Cole aud
the Grand Jury, set out in the morning papers,
correct And further says no, WIN J. HaDLEY.
Sworn before me this 18th day Of June, 1867 W. B.
! HARRIS, Commissioner Of Deeds.
| ARGUMENT or LYMAN rRsxAN.
Mr. Ly man Temain, IN opening the argument to show
cause why Mr.. Hadey shouiu not produce the paper
asked for. said that he appeared the counsel and
friend Of that gentleman and not the counsel Of the
prisoner He commended that his client had perfectly
avowed bis willingness abide by the decision Of The
| Court. and not influenced by any desire to stfe
evidence prevent the Grand Jury from obtaining tho
fullest light upon the case under their nvest
The letter asked for. however material evidence
the defence and il would not be proper permit It's
against It hereafter Mr. Hadley in acting as he did had
been Influenced by sense of professional duty aud
honor. and could not without violating his trust
sent 10 the production Of this paper. Tho Court
! might hold otherwise, but he would obey its
order, as was intimatsd Counsel had never
known OF such proceeding as the prescntment OF .
respectable member Of the bar officer Of the court,
who was willing 10 come INTO court without order to
explain bis reasons From what had been set forth IL
appeared that the paper called for finally brought 10
the hands OF Mr. Hadcy who held solely in his capac-
ity OF counsel for the prisoner The question submitted
70 the Court was whether after the position Mr. Hadey
had taken he should be compelled to disclose the paper
before the Grand Jury. The ends Of public justice did
not need Its production The fact Of the homicide was
plain, open matter The paper might be proved by
importance sas he Court would violate s we'll Sp's
principle Of evidence TO compel Mr.. Hadley, against
his will and OF the prisoner to produce the paper
II was against the principles OF the common law TO
compel the prisoner to disclose his defence Mr. Hadley
and the prisoner we're in this case. Tho speaker
quoted Mass. to show that In similar instance the
court would not undertake to advise counsel 70 surrender
or disclose the contents Of paper held BY him in tho
interest OF his ciont The principle was 80 elementary
he would wait TO learn on what possible grounds the
quoted from Phillips on Evidence to show the principle
OF protection in the Of communications or docu
ments entrusted 10 professional confidence. Il was
doubtful even, If evidence of their contents could be
permitted to be received from another party who had
read them II the accused unwilling to produce tho
original He quoted instance even where second
attorney not required to dvrge the contents OF
confidential document. In conclusion. no submitted
that Mr. Hadiey had good and sufficient reasons for not
obeyng the request Of the Grand Jury.
ARGUMENT OF DISTRICT ATTORNEY SMITH.
Mr. Smith, in answering the argument Of Mr.. Tremain,
said IL an ndispuabe fact that the late l. Harris
Hscock the representative of the people to the Con-
sutonal Convention was drawn to the city or Albany,
pistol shot dead From the circumstances surrounding
the case was natural that the people should feel the
shock Of CRIME whose aggravated and barbarons char
acter exceeded that OF almost any other II was his
official DUTY to assist the Grand Jury investigating the
circumstances attending the crime, and he had advised
they believed that there was involved certain degree
OF reconciliation the part OF the accused Whether
he would DO allowed to develop this charge involved
In the proposition now before the court II were in the
guilt then the halls Of justice might well be closed He
was making his researches In the interest of the people
The proceedings 90 far had not involved any charge Of
contrary, there was omission Of the usual clause
charging the witness with contemptuous conduct The
Grand Jury ID part OF this court and according TO
usage 1t was It's duty to make presentment Of facts
with reference TO any witness There was no charge
Of any wrong doing on the part Of Mr. Hadlcy; The
stances The question after whether tho paper was
privileged communication. Tho question was one OF
corroboraton OF the charge that Cola deliberately
planned and plotted murder before leaving Syracuse
&C. then so Now that sucS paper had
been written there was undsputed evidence The
the question then had the people the right 70 COM
secondly to disclose its contents It important TO
the Grand Jury to have and identity that paper now
Of Colo. man who could commit such q crime could
also be guilty Of preparing another paper II was I'M
portsn Also ss bearing upon the Of me
reference to contemplated deed and, atsr the deed
gets hold or and banded tho letter 70 his COUNSEL
sacred than the person OF the prisoner yet the latter
might be searched. II man. whom charged with
% . iss
.ss , S i D.s nj Sssa q 70. s.: tho ::
hight TO ses pzpss which passed from the hands
q Rev; ". 0oss = n.rry cuyI.r snd sssnoe % BE
ing bis case 20 he COUNSEL IL was no part q their
ndentiai communication II co. then any counsel Who
prosecution and turn his client could defeat
the ends OF justice n there written evidence TO
artfuI, lawess man. and not Of a rcnzed wronsed man.
anu II such evidence could be placed 10 receptacle
where the judge the jury and the people could never
know its contents then might the ends OF justice
Mr.. FIREMAN. said Il was important the Court should
not lose sight Of the real question between Mr.. Hadey
and the public prosecution The latter had offered an
irrelevant proposition to the Identification OF the
papsr BY Mr. cuvsr referred to BY Mr. Had
ley in the possession Of lar. Hadley Mr.. Hadey
had admitted the fact II was question whether
disclosed compulsory under the circumstances this
The prosecuting counsel had not disturbed
the position Of the defence iota. Hc had
cused, he said. But what cared the defence
how material was the evidence contained in the
paper written at Syracuse7 Even II there had been
written confession or any such deed, the private
rights of the prisoner were involable. What rieh,
against him As the Individual referred to.
there were higher principles behind them-the same
principles which were yrung from the crown BY inc
the rights OF the people at this day.
Mr. smith, in closing the argument, conended that,
gone the hands Of the counsel for the purpose Of
eiecting loan, in the present case the document In
question had gone INTO the bands o. ady Tor punca-
TIE Court wished 70 know u the undertaking OF coun.
OF its privileged character
Mr. sm.h-Mr. Hadley could mot waive the privi-
Leg o,n,, ..a !, On. ,s.dv 70 ,y. an mm.a,.,. as.
csicn, and issued the following
rHE oRpsR or THE Production or THE
LETTER.
In CouRr or SrssroSs-The People a. Cde-1f
General Cole had written the paper In question before
the homcide and put u in his pocket and kept Il until
after the homicide, and then, after retaining Mr. Had
ley. had placed paper In his hands even II II con-
tanned full history OF the caseD think In that event.
II would be privileged communication. and this Court
would not direct any counsel violate that trust But
Mr. Cole having written the paper and put 10 In the
hands Of Mr. Cuylcr, with instructions to have pub
lishcd az any fuse occurrcd and Mrs. Cuyer having
delivered 10 another party FOR publication, Cole him.
self gave the paper publicity and his counsel getting
In his possession by Coles directions, am inclined TO
the opinion that the paper cannot again be made prv
legged private once having been made public by tho
accused Mr.. Hadey must produce the paper and
answer all proper questions as TO It's identity, and no
more The paper should be left with the Clerk OF the
Court 70 enable the public prosecutor, a. well ~ the
prisoners counsel have access thereto 80 FAR
as any contempt the part OF Mr.. Hadlcy is con-
cerncd, the District Attorney from the outset OF this
motion order disclamed all intention on the part OF
Mr. Hadley; and this Court believes that Mr. Hadey In
tended contempt but simply faithful discharge OF