The New York herald., 1877-01-16
THE PHELPS CASE.


JUDGE DoXoHuE's DEcIsIoN--THE PRISONER
HANDED OVER TO THE TENDER MERcIEs OF
THE COURT OF GENERAL SESSIONS
II being generally understood that Judge Donohue
would give his decision yesterday upon the application
under tho writ Of habeas corpus for the discharge OF
DIR. Charles Phelps, detained in custody under COM
m,tmont OF the Court Of General Sessions refusing
questions put to HIM by tho Grand Jury in
regard tho called May Bennett duel there was
might have been anticipated, large crowd in Supreme
Court. Chambers, at one P. NJ, the hour announced
for rendering the decision. Mcssrs. A. Oakley Hall
and John A. Foley, counsel for DR.. Phelps put in a
prompt appearance, and were followed by District
Attorney Phelps Judge Donohue called Tor the papers
In the casc and immediately the large throng present
rushed forward from their toward the bench
hear what tho Judge might have to say. Judge Dono
hue. instead OF having carefully prepared written
opinion, gave his decision orally. The following are
his remarks embodying such decision. From his
opening observations u wis supposed that he was
going to order the Doctors release but when nearing
the close he announced different result there was
apparent general disappointment Tho following are
the Judges remarks cmbodying his decision:-
In the matter OF Phelps tho prisoner was brought
b9iorc me habcas corpus seeking his discharge on
m,t1ens Of the Court Of General sessions The re.
turn OF the ohcer in whose custody nc
Is shows that he Is held under % commit. ls!.
witness refusal to answer ccrtan questions out in
the commitment. Tho witness cIaim is that BY vir.
OF the law he IS protected from answering these
questions; that without that immunity his answers
might subject him IL punishment IN another State. and
that the law therefore does not compci him TO
The first point tho District Attorney takes Is, that
sitting mere, cannot 90 behind commitment oil the
Court Of General Sessions. Without going ut length
into that question will SIMPLY say that IN tho case OF
Hackley, IN winch The same point was ralScd the
Court did so into the question whether the privilege
could properly be claned and did discuss the matter
at psth and though the Court remanded tho pris-
not tue ground that II could not 90 be-
hind the commitment, but ON the ground that he
entitled tho privilege the iacts stated. And
in the case OF tho People on the relation ol Tweed
against Liscomb understand the same principle was
helu and understand that the matter oil Langc, III
Is Wallace the Supreme Court OF the United States on
precisely tho same point adjudcatcd that the Court
before whom tho prisoner was brought had the right
10 consider whether the papers case was made
Tor inquiry into the process OF the Court shall
comm tmcnt to examine whether there Was reason for
tho action or tho Court vi General Sessions The
question lhcn arises whether the prisoner claimed the
right and Is protected by the privilege now set
up. IL is 0i Importance 10 the Court
sitting here what may DO the effect Of
compelling not compelling answers 10 these ques-
tons. 1t Is simply the duty OF the Court,
forcby held by Judge RapaIo IN the Court OF Appeals
to ascertain what the law aud 1t without
regard to consequences. We have simply 10 admins
ter Inc law. The respondent claims mere that TINS
prisoner bound to because he IS precl ided
from the use OF his answer IN any criminal processing
against him. How tar, II this were q now question.
would be disposed TO go into 1t there is no need TO say
because the law TO II has been thoroughly settled IN
the Hackey case. II is there held that the
protected he bound to answer, although
the answer may enable the prosecution to obtain ev-
dcnce 10 convict him on another charge do not
think necessary to 30 into that Tho prisoner not
charged with, nor arc The questions put TO him. nor do
understand that IL Is In any way alleged that lie ~
connected with an offence committed within this
State The questions put 10 the witness and The whole
OF the interrogation show that IL Is IN
regard something out of the State. When this State
undertook to punish duelng they had several offences
70 deal with. First, offences to acts committed
within this State; then 10 acts committed out oil
this State. In tho section oi the law under which
this alleged immunity IL gwen, by the first sectioL
the offence In regard to hshtDg duct is declared
punishaue, by the second section matters relating TO
carrying challenge; all matters relating to doIng
certain things within this State. Then, in the third
place, the provides Tor distinct and positive
offence IL Is provided that as 10 matters relating
the nrst and second sections, witness answering
when compelled to testify, his answers shall not be
used against hirl. Subsequently, when the statutes
were rearraDged, another offence was added by The
NH secIon, the only relation OF which to the first and
second sections rs that II provided the same penalty.
It's not amendment o the other sections but takes
up different class of cases. which aixcs the
punishment II seems clear tina; under that
section there Is protection Tor this witness
swcrIng the questions and that he to pro-
lection under the law There was very good reason
for the difference regard to that section. Under the
first and second sections the offences we're in this
state. while under the fifth ana sixth sections the
offences In relation acts out OF the state, and II
would be an empty power TO give immunity or protect
Witnesses IN answering IN tlat class O cases. because
such could still be used against him the
other State, matter what his immunity here, and
this State could not protect him there
Tho last point taken by the District Attorncvwas
that when this witness before the Grand Jury aud
the Court oil General Sessions he Jailed 10 clam pro-
lection under this privilege. think in that the Dis
trict Attorney correct. When called before the
Court to testify he is the party 70 Judge whether his
answers Will crimnate himself. 1t rs In his minc what
the evidence would be and whether II will crimnate
him. II Is Tor him and other person TO claim that
immunity IL may have been really his inteL ton IN
ia n IN NJ mn Inn n
was not made known TO the Court, the Court
made to understand why ho refused to answcr. His
rcpy was SIMPLY dcclinIng 10 answer Tho questions.
THINK under these circumstances on the return as II
stands, the rclaor must be returned TO The Court OF
General Sess ons.
IN THE COURT or SESSIONS.
Immediately after the Judge had finished Dr.
Phelps ard his counsel, together with Deputy Sheriff
MaGoniglc, having he prisoner III charge, proceeded
TO the Court OF General sessions, followed by good
share OF the crowd. Mr. Foley stated that according
to the decision OF Judge Donohuc Or. Phelps was
questions in case there might be anything In the
answers which might lend 10 cfminatc himself, and
that no had tho legal right TO avail bimsclf OF that
privilege Counsel further stated that Judge Donohue
Gilderslcevc also proper. Dr. Phelps not having
taken advantage oil his statutory right and declined
to answer the iDterrogatIons put to him,
the witness, counsel added, had been committed by
before the Grand Jury, but, the Grand Jury were
absent, counsel thought II only right that Dr.
Phelps should DO released his recog iznnccs
until he should appear at eleven O'Clock this morning.
Assistant District Attorney Rollins, who appeared tor
the prosecution, intImated that he had doubt Dr.
Ph clips would be IN attendance to before the
Jury, and under the circumstances he would offer
any opposition to the motion oil counsel In response
att ndance THIS morning al eleven o'clock, ana
released on his own rccognizancc