The New York herald., 1877-01-12
THE PHELPS CONTEMPT CASE

| WRIT OF HABEAs coRPus-DEcIsIoN RE-
sERvED-THE PRISONER STILL IN THE Gus
| TOBY OF THE sHERIFY.
Dr. Charles Phelps, who committed for contempt
OF court Tuesday afternoon in having refused TO
answer questions put to him concerning the move
mcnts of Mr. Bennett and Mr. May, trought before
Judge Donohue yesterday, In Supreme Court, Cham
bers upon Of habeas corpus and cerorar granted
by that Judge Tuesday evening, ara madc return
able yesterday at nino O'Clock in the morning DR..
Phelps with his counsel, Messrs A. Oakley Hall and
John A. Foley were hand at that time. but as Dis
tr,ct Attorney Phelps otherwise engaged tho
hearing was deferred until halfpast Al
that hour tho court crowded with
eager spectators, including number OF friends
OF tho imprisoned gentleman, and proceedings
opened To the writ OF habeas corpus tho Sherin
returned the Court commitment The petitioner then
filed a traverse the return and set up that he was
prosecuted under that section Of the antidueling code
which relates to partly done in this State and
partly In another He claimed that no statute gave
him any else any protection against the opera
of that particular section, and asserted his priv
Iege Of refusing questions when by so dong
he might establish link in chain OF evidence to
criminate himself District Attorney Phelps moved to
dismiss the writ the that there nothing
alleged in the traverse which voded mpeached the
commitment The Court decided to hear the views Of
COUNSEL and Mr. Hall argued in support of the petition
and the District Attorney against it.
The proceedings began with the presentation to the
Court by Mr Foley OF the papers in the case includ
ing the traverse the sherihs return This read
by Mr.. Foley 1t alleged IN substance
FIrst-Tnat It did not appear by the rccitals Of
the commitment that either any member OF the
Grand Jury or any other person had before the ira
verser was examined by the Grand Jury witness,
complained under oath otherwise IN the name OF
the people or otherwise against James Gordon Bennett
or Frederick May as being guilty or probably guilty OF
the against the statutes OF this State, that
the Grand Jury could acquire any Jurisdiction
to examine the traverser ia the mode set up IN The
commitment returned as true cause OF the imprison
ment OF the traverser, TO put 10 the latter witt
any OF the questions recited In the commitment;
and Dr. Phelps further AYERS that matter oil TACT
member the Grand Jury, nor any other person, be-
fore lie called as witness, had IN any manner
made on oath or otherwise any complaint wherein be
couid be iawtuly examined as q witness before the
Grand Jury. He averred also that at the time there
vas propounded to him the questions sol up IN the
tion PROFOUND them 10 him, and that the Court Of
General Sessions dd not possess jurisdiction to issue
| Second-That at the time Dr. Phelps called
alleged ana pretended witness before the Grand Jury
| no one had complained against either himself or Mr.
Bennett as an offender against the this State
| in that he had within this State fought duel with
had within this State challenged another person to
light duel that he had sent or delivered any ver
bal or written message purportng or intended TO be
IA or such challenge or message, or had knowingly
carried delivered any such challenge message
or had been present within this State at any time Of
fghtng therein any duel with deadly weapons either
as second, aid surgeon had advised or given any
tenance assistance to such duel Travcrser de-
med that any complaint embodying any all OF the
foregoing particulars was in any by the
Grand Jury against any person at the time when he
refused answer the questions alleged In the commit
ment; and AYERS that neither he nor Mr. Bennett
was any wise an offender against the statutes He
that he not A. the time OF the propounding
OF the said questions within the protection Of any
statute Offering to him an immunity against prosecu-
tion for any all OF the offences aforesaid should he
testify any matters tending TO expose him 10 prose-
cuti0n for u criminal offence
7hird-rhat the commitment was void in that on its
Dr. Phelps tho Grand Jury were proceeding to inquire
into transactions occurring outside OF this State.
Fouth--Dr. Phelps stated that he had been advised
by counsel and be believed and averred that by the
rccitals he had been by an informal and illegal action
ef the Grand Jury, exclusively of any other charge
accused OF having aided aud abctted MIR. Bennett and
Mr. May, or either in leaving this state with inten
purpose OF eludng the law relating TO dueng
and then OF aiding and abe.ting Mr. Bennett and Mr.
State challenge to hpht duel out
OF this State, thoy being inhabitants hereo and that
sad questions were by the Grand Jury propOunded to
him upon that action and charge OF the Grand Jury.
He further alleged that II the charge true he
other State well in this. And he avcrred that by
the common law o evidence he was upon such charge
privileged from answering any questions which might
tend to crimnatc hun in such offence. He averred
also that the charge against him were true then no
statute gavo TO him any immunity from punishment or
prosecution, providing he gives testimony crimnating
himself yet only to be used against other PERSONS
And further averred by the informal aud Illegal
action OF the Grand Jury at the tme when the ques
tons were propounded 10 him Messrs. Bennett and
May were also charged with having left the State of
New York while inhabitants thereof Tor the purpose
| OF eluding It's laws against dueng, and were
charged with no other offence, and that to aid
In discovering that and no other offence
! the traverser had been called into the Grand Jury
room for examination witness, that being the ex.
animation set up IN the commitment He alleged that
he was privileged by the constitution and laws of the
land from answering said any of said questions.
And this further avcrred that his acts set
IN commitment its face whereof he has been ad-
ludged guilty of contempt. acts necessarily nno-
and JustabIc and that in refusing TO answer any
OF the questions ne was only asserting right whch
secured to him by the constitution and law OF the
land.
Fifh-That within his own mind in the Grand Jury
room he declined said questions because each
tended to form link In chain OF testimony which
would eliminate II the allegations of crime implied by
the questions true or founded upon fact That
he did not then thcro state such reasOus because
his position novel aud he unadvised there by
counsel as his rights Of objection and did not FULLY
| understand them aud was not informed them. That
| In court his counsel in his behalf gave The lore
going reasons for his alleged contumacy whereof the
| Court took no notice whatever That as then now
he objected Of the questions for the
reasons aforesaid, and claiming that the return showed
him to be imprisoned solely because he refused 10
questions Tor such aforesaid asked
his original petition, thus further supported be ad-
Judged true and tho return 10 the wrlts of habcas
corpus and ccrtiorari be adjudgcd of effect that
he be released from the commitment forthwith with
out further day in court or further restraint OF his b
crty by the Sheriff.
ARGUMENT HALL
when Mr. Foley finished reading this tho Distric,
| Attorney moved TO have the writ dismissed the
ground that there nothing alleged IN the traverse
(which in anywise voided or impeached the commit.
ment. Judge Donohue said he would hear counsel on
the ISSUE and Mr.. Hall argued In support Of the
traverse His first proposition was that the Court had
full jurisdiction inquire into the causes OF the deten
ton up In the commitment and full power 70
| discharge il the GROUNDS presented 10 him should
be deemed valid. He was aware that the general
term Supreme Court In the Shanks case denied
the power OF Judge at Chambers TO discharge wit
ness brought up under similar circumstances but Hit
Honor would remember tnerc was maze In the Shanks
case peculiar plea OF journalistic privilege unknown
to the law and that privilege was the basis OF the
| Shanks habeas corpus. He had in the present case
made application, following the precise language o.
| the former case OF Hackicy, in "a New York, and
within decision OF that he contended the pres
cnt one icil