The New York herald., 1877-01-12

tion s. Therefore DR.. Phelps charged with completely
In transaction under that section had right TO rest
upon his common law privilege Of not answering py
tending to criminate himself
The next question was whether petitioner was
charged with such completely. Tnat he was, Mr. Hall
held. was uninstakably evident from the reading OF
the commitment An answer the questions pro-
pounded TO Dr. Phelps might expose him 70 prosect.
tion IN this State and also In another State. Even u
there had been guarantee attached 10 section and
an indemnity Mr.. Hall would have been prepared to
argue that the Legislature could have taken away
the common law right OF witness of securing himself
by silence against prosecution In any other State
ns by ns s
State. Counsel would, however. rely upon the
fact that there was no immunity for any party
who was implicated under section g. that consequently
Dr. Phelps was sustained by tie common law and tho
Heckey decision In his refusal TO answer the questions
put to him. He had asserted that privilege IN court
when questioned, and again on the present OCCASION
when he asserted It IN has traverse and the Court o!
General Sessions In committing him acted Illegally
because It should have sustained his privilege.
There reason, Mr.. Hall further argued, for not
compelling witness to determination OF actions
partly done In the state and partly out, because even
II immunity were attached 10 the home action, tho
f-convcion could be used In another tribunal The
language OF sections and showed that as ala also
the revisers' notes.
In conclusion Mr.. Hall argued that instead OF com.
mittngDr. Phelps for not answering the questions u
should have advised him of his privilege not 10 answer
In support OF this proposition he quoted Cowen 255
DEMO, 2Sl Taylor VS.. Wood, oil Edwards, ", ana
8 OF Edwards, ass.
DISTRICT ATTORNEY PHELPS REPLY.
In to the arguments OF Mr.. Hall u was con-
by the District Attorney that did not appear
by either The commitments the petition or the traverse
that Dr. Phelps al any time before the Grand Jury
swerinr on the ground that the answer would tend
TO crminate him. He had been committed
by regular process Of the Court OF General Sessions,
and ho should bc rcmanded whence he came. In this
district least that question had been settled IN the
OF The People against Fancher by tho judgment OF
the General Term OF tho supreme Court Witness had
right claim his privilege, but that question was 10
be determined by the Court before whom he was
brought, and not coliaterally upon any proceedings
upon habeas corpus 1t admitted by the petitioner
that he had asserted no such privilege. but II was
alleged In his traverse that he had IN ms own MIND %
The District Attorney apprehended that whatever the
witness might have in his mind could not be held 10 ex
cmpt him from answering the questions II he dd not
bring that TO the knowledge Of the tribunal which was
examining him.
Upon the question whether, under the circumstances
OF the case, witness had any privilege which should
exempt him from answering, the prosecuting officer
said II did not appear that the petitioner had been
charged with any offence, or that the answers 70 She
questions asked would tend to crimlnate him. The
result Of such doctrine as laid down by Mr.. Hall
would be depIorable
for TO commit act which in thiss State Is per-
ecy lawful, would II be possible that II he were ex
amnod as witness In the courts OF this state ana was
to that transaction that he could shelter hn
self under the plea OF privilege that the answer to
might tend TO expose him to prosecution somaVhere
elsep Especially would II be wrong II he alleged tha'
he would not answer because II might expose him 70
prosecution somewhere, without alleging any particu
lar place. II witness is entitled to any privilege IN
the matter it has reference to exposing him to
criminal prosecution under the laws Of this State
Proceeding the District Attorney claimed that II was
the intention OF the statutes upon dueling TO put the
parties who attempted to evade the law by leaving the
State In precisely the same condition IN all respects as
those who offended against the law within the State
In conclusion Mr.. Phelps summed up by alleging first
that there was privilege exemptng Dr. Phelps from
answering the questions second, that such privll
ege had been claimed when they were asked; third
that whatever might be the opinion OF tho Court MS t.
the proprety of the questions IL had no jurisdiction
to inquire into the propriety of the commitment, ant
1 became Its duty, therefore. to remand tn(
prisoner.
Judge Donohue took the papers aud reserved h
decision
ACTION BY THE POLICE
Il is stated that charges to DO preferred agans
Dr. Phelps police surgeon before the Board Of Po
hce on the alleged ground that he left the city whou
giving the Board due notice. Tho Captain OF th
Eighteenth precinct has been summoned TO testify a
to what he knows of the Doctors absence