The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1873-07-11


Judge Guigon in the case of Or. Cullen, who
the case Of the Commonwealth uS. Messrs.
Roysll, Tabb, Meredith, and Trigg, seconds
in the late duel. Sometime before the hour
of the opening of the court Ql o'clock a
large number Of persons had assembled, and
everybody had his individual opinian to en-
press. The hliM of voices was only stopped
cord Of the court for yesterday was read,
aud everybody was all attention to hear what
was to be said, The following is
JUDGE agtaoN's orrsros.
In my view OF, this case 1t. is unnecessary
to decite the constitutional Question whith
has been so ably argued by counsel--.viz.,
whether the act of October 81, 1870, which
provides that ans person engaged or con.
cerned in duel may be required in any pro-
secution against any person but himself "to
testify as IA witness in such prosecution Is
in violation of the constitutional prescript in
the Bill of Rights declaring that :" no tiiap
can he compelled to give evidence against
himself"
Admitting, for the purposes of the argu-
| ment in this, case that the objections TO the
constitutionality Of that act are valid, 1t does
not appear to me that the case at bar comes
within the purview either of the act OF the
presuript Of the Constitution.
An examination of the numerous authori-
ties cited at the bar has brought me to the
conclusion that the rule laid down by Judge
Marshall In the Burr triRl (p. e44) contains
most briefly and exactly the principles which
govern the privilege sf the witness ID bs
exempted ff0ln answering questions which
| may criminate or tend to criminate him, as
well as the powers and duties Of the courts
| in such cases. His language is: "When q
question is propounded it belongs to the
| court to consider and to decide whether
any direct answer to it can implicate the
| witness. Ii this be decided in the mega.
| tive, then he may answer It without vio-
| lating the privilege which Is secured to
him by law. If direct answer to II may
| criminate himself, tlien he Tiust be the
sole judge what his answer would be. The
| court cannot participate with him in this
Judgment, because they cannot decide on
the effect of his answer without knowing
what it would be; and disclosure of that
! fact to the Judges would strip him of the
| privilege which the law allows and which
| he claims. 1t follows necessarily; than, FROM
this Statement of things. that il the question
| be Of sIsh d description that an answer to it
/ may or may not criminate the witness, &C
cordins to the purport of that answer, it
must rest with himself, who alone can tell
what it would be, to answer the question or
not."-B Bu,7's Trials, col. /, page 244.
Under this ruling, whenever there is no.
thing before the court but the bare oath of
| the witness that the answer may crimnate
or tend to triminate him, be must be allowed
| to decide that question, which is really il
legal iueSli0n, for himself, because the
/ court cannot probe him or examine him upon
| the facts on which that opinion is based lest
| in so doing the answers to the explanatory
questions may equally tend to criminate him.
On the other hand, when the witness has,
/ without objection, explained fully and unre-
servedly, under oath, his entire knowledge
OF and connection with the transaction, aud
| his statement is fully corrobo1ated by the
| testimony Of others, and the couft there.
| from can see that there is nothing to crimi-
nate him in any answer he may make to the
| question, then ii be refuses to answer aud
claims his privilege the question comes up,
Must the legal opinion of the witness as to
the effect of statement hold, or must the opin-
ion of the judge prevail?
If the judge has the right to 60 into this
examination, land think, in the interests of
| justice, he must have it-there can be but one
answer to the question. s.e
Now, what are the facts upon this applica-
ton? .u. ~
| The witness (Dr. Cullen) refuses to an
swer any question before the grand jury as
to his knowledge of an alleged duel between
John B. Mordecai and w. Page McCarty,
and coming into court claims his privilege
upon the ground that any answer he may
give will tend to criminate him: Upon the
admission OF the upconstitutionalitY. of the
act of 1870 ii this were oil before the court,
his claim wot1ld bE conclusive. But this is
not all before the court. The Common.
wealth has produced from the records of this
court, where it is on file, and introduced in
evidence along with other testimony, the full
| statement Of this wituess before the inquisi-
| ton of the coroner into the death of John
| B. Nordecai. who it is alleged fell in duel
with McCarty-an examin alton made, rs
appears, without objection on the part Of the
witness, and part Of which ID voluntary
statphent made by him at his own instatice-
an examination fully detailing his own action
| and his knowledge of the transaction, sworn
to, read over to, and signed by him.
What appears from that full detail Of all
the prisoners knowledge and acts?
1t appears that he was approached by one
of the alleged principals and one Of the al
| legged seconds to this ddel, aud at once de-
clared that although his professional services
were due to any patient, whether wounded
legally or illegally, he would not be party
| to any duel; but that if he were brought to
| the vicinity Of any affair by q professional
| call il must not be with his knowledge; that
afterwards, when by g,ase he was directed
| TO go to Oakwood Cemetery, near which the
| duel was fought, he Immediately, believing
| that duel would be fought, communicated
the facts to the police through friend, and
| fingered in tn city until he believed that the
information thus conveyed had accomplished
bis purpose by the arrest of the parties
and the stopping of the duel; tnat
thus having waited until he Supposed the
| police had ample time to be upon the spot,
in The Interests Of humanity he went to
lakewood, which is some distance from the
| field, and believing after he had been there
\ for time that his efforts had been success
full, he was about to return, when his atten-
| ton was called by circumstances of excite
meut in the neighborhood of where he was
which Indicated that tue result he had en-
deayorcd to prevent had been accomplished !;
| that then, after the duel had been fought, in
spite of his efforts to prevent it, he went
upon the field to assist the wounded men.
Thus it appears that when approached to
obtain his services as surgeon in probable
duel he refused to be party to it, and as
soon As he had reason to believe that one
would take place he took judicious means
to prevent it; that be took no part In II !;
neither aided, assisted. abetted, counseiea
For advised it, but refused to participate IN IL,
and at once sought the aid Of the police TO
o,,t q stOp tn A.. and in NIL this he is cor