New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1877-01-12
DE. PHELPSS TROUBLES.

ARGUMENT on THE WRIT OF HABEAs CORPUS
DECISION REsERvED-DR. PHELPS IN DIFFICULTY
WITH THE POLICE BOARD.
The writ of habeas corpus granted by Judge
Donohue in Supreme Court, Chambers, on Wednesday,
on the petition of Dr. Charles Phelps who was brought
before the Grand Jury and refused to answer questions
in regard TO the BcnnetMay duel, and who was COM
mitted by Judge Giiderseeve for contempt, made
returnable yesterday at 1890 but as the District
Attorney busy at the time in the Court OF General
Sessions, the matter adjourned until 1870 p m Dr.
Phelps had been in the custody OF the sheriff since
his commitment, and had been IN charge
OF Deputy Sheriff McGOnigal, but he had
not been imprisoned. The impression prevailed how
ever among many of his friends and acquaintance that
he had been taken Wednesday evening either TO Lud-
low Street jail the TOmbs and many inquiries were
made for him at both places during Wednesday night
and Yesterday morning When the case came up before
Judge Donohue, Dr. Phelps was represented by John A.
Foley and A. Oakley Hall, and DistrictAtorney Phelps
was ACCOMPANIED by Assistant DsrictAttorneys Lyon
and Bell Mr. Foley presented the petition OF Dr. Phelps
10 which were annexed copy Of the commitment and
the return of the Sheriff showing that the prisoner was
in his custody He also presented the traverse of this
return the main points Of which are as follows:
II does not appear that any OF the Grand Jury
or any other person before this traverser was exam
ined as witness, complained against Bennett or May as
beng guilty or ROB y y c@ am acanro rsdc
tOn to examine him or 10 put TO MN any OF thc ques
that the Grand Jury did not have jurisdiction TO pro-
pound TO him the questions nor the Court OF ErherM
frayerser was called as witness had complained
against him or against Bennett or May as Dellg an
written a challenge, delivered verbal message
purpOrting to be challenge, or mad 9een present
6n this State time, OF lighting duel either as
second aid or surgeon; and this raverser AYERS that
neither he Bennett nor May, was IN any wise an
offender against the statutes and that he not and was
not at the time OF the propoundng OF the questions
within the protection of any statute Offering TO MN I'M
rufio
tiers tending TO expose him to prosecution for criminal
offense that the commitment was void IN that ON ls
face il shows that in propOunding the questions aore-
said the Grand Jury " peeedg s 70
that he had been by informal and illegal action OF the
Grand Jury charged with aiding and abetilng Bennett
and Nay II tins charge Sta,s T be- true the is
amenabe TO punishment for criminal oense h ano,ner
svers that by the common law evidence he upon
snch charge privileged from answering any questions
which might tend crimnate him, and that his acts
we're necessarily innocent and justiable that within
his own mind before the Grand Jury he Declined 10
testimony which would crminae him If the allegati9ns
of implied in the questions were tre snas nc dH
ton was novel and he unadvised there by as
his rights Of objection did not iny b mem
court his counsel gave the foregoing reasons tno
took no nat a. 1af for now a
said he asks that his original peoh DC Jud and
true return 70 the wrts OF haoeas corpus ana
certiorari be adjudged OF no elect
The strictAttorney at moved for dismissal Of
the writ on the ground that nothing was alleged In the
traverse which would make void the commitment. Mr.
Hall said that the commitment showed that the Grand
Jury we're proceeding an alleged innacon OF inc
law relating TO dueling under which no immunity was
proyided Dr. Phelps had right TO rest on Ills common
law privilege of securing immunity for himself by
silence II he knew Of hostile meeting he was an 40
cessory It, and that would subject him 70 prosecution
In this State and In another State The prisoner should
have been apprised Of his privilege In the Grand Jury
ROOM The Revised Statutes included two older statutes
passed at different times. One provided for dueng In
this STATE to that class Of dues the persons Access
sorry to the duel required to testify 10 the state
coud and in the statute did protect them from further
prosecution growing out Of their testimony This was
included in 1.-THE first section relating TO duelns' But
the State went further punish its citizens contemplate
ing dueng another State. The accessories might %
punishable under law of another State where the pro-
lection granted to witnesses by this State would
not avail Them this the statute left them TO tho
assertion Of their common Law night y refuse 70 ~ any