New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1877-01-16
favored ,omc PLAN bat not committed to any one I"
THE BEyYETrMIY AFFIiR.


JUDGE DONOHUE DECIDES Thai M HAS 1liE E'rhi
TO REFUSE TO ANSWER on THE GROUND OF
CRININATING HIMSELF.
In the proceeding by DR. Charles fhc'pS'
ALLEGED to be one Of tGc surgeons IN the MaYchhct'
duel to be released from imprisonment, Juigc Do'"hue
has decided that Dr. Phelps did not exceed LIS rihiS III
rcfrsin to answer certain questions o the Grand Jury
but did assert them at the proper time III le c'r'c'
FORM and therefore - back 10 thc Court OF Gen
crol Sessions or the Grand Jury, ard there, IF hc ques
tons are repeated state Iii. foI refusing ~
reply that the would tend TO crimnatc hihse
Judge Donohue in his oral opinion, inst took up the
question of his right 40 behind the commitment OF INC
Court Of General Sessions and decided that he hhd INA"
right. He then said
rieht and j. protected by the privilege now SCI W.. -
O no importance to thc court sitting mere WIat ,l'S ~
the effect Oi compelling or not competing ahSNc.S w
these oupstions IL is simply tine dag OG JEe court rs
was lorcibly held by Judge Baplp III the C0uii "a ~
peas, to ascertain what tie law Is ana "dIi,i'toi a.
without regard 10 consequences W nave a.ih r.
the law. The respondent Claims h,ic 'a, a
prisoner Is bound answer because the Stato - Pc
Guided from tn of his answer IN any cil'Ii.'
cecJiug against him. How far u tls Wf!e I M
Meet say because the Jaw ~ To II mas ', ti" %
seeded the llacAIcy ease II - thtie hsu la ~ N
tbe witness Is protected he bound 10 answer d',hous
the answer may enable the prosecution 70 o,,In
dencc 20 convict him on anoi her clurse, "o , ir'cJ
necessary 10 20 that Thc prIsulei ~ not c4,tl-
With nor DO understand that u l. III any way hEtu
that h. is connected VITA olfease committed W'tHih
Wen Ills state undertook TO punish dueling II had
s,'rl oiuees ~ dc With: FIrsi. Uienscs as ~ acta
,nn,itd within this state: second, to acts commit
ted Out of this state. In TIE succession ol Ih IA"
which NH, alleged immunity Is given 10y the FIRST section
the ncnsc In IL gard 10 lighting duel N uicldod pun
Ishabe by tle second section, matters ieiah5 20
Ing chaenEe-all inatet relating 10 DONG CO IAN
fiu. Ifun Jlis STATE Therein thC act provides OI q
distinct ana positive on MS. III ! pIuNi'ou ~ W a.
trs leaIirg to the ist and second sections lhht II d
Witness answer when compelled To TESTIFY, MS answers
shall not be used against NM subsequently, WIZ, ~
statutes were rearranged another oheIse was a -
the INN section the only relation OF when 10 the nio
and second sections is that II provides the SAINT
n Is not an amendment OF TIE OGer sections D 'hcs
nm oiiTrnt class oi cases. which alNcs the same
punishment. II to tue Gear tlIdt u1iuc' lh'
on there Is protection fol TINS witness ID
Inc ourstols and at he Is entitled to prot cuOh under
thc older law. There was very Eo"u ie'soii i ~
Inference III regard 60 that section Ihier 'ne
ir,t and second sections the Oiiciises "cft. ~
TINS state, Whine under INC MN en- anu, - go
;, ctons The oiscs ia relation 10 acts uut oi @
Stiie, ana would be an empty power |" Elte ilii'.'!
or project Witnesses in Answering III lAdl oisS y,
because such evidence cOnii SUI pe usc assume. 49,,
in the o.uT state matter what tHcf immunity n0''
ana hs state c0uld nos protect tlein mere. - -, ,
The ast point taken ~ tIc Dl~'liet At,ointY was '
when lnis Witness before the Grand JuIy ana ~,
Court OF General SESSIONS ne failed 10 c!"n
under this Fgit ltiiL@ III iAa' we Dsi -,
ucy is correct MEcn called before the 'ot 70 toS'i'
lac is the party 10 judge Nhcihtf MS answers VIII eI
nate himself Il II ~ ms nlhi what inc - Il Nv -
he ana whether II VIII cIimlHdic MN IL IL l"I III" ''
10 otuef person to claim that Immunity II may az g.
been really IA, intention III this tdhe 10 nave Cidi'u IL
on that ground, that was not lnHte KNOWN 10 lc
touIJ nor the Court H.dc TO uhleIst hu WI! az
refused to answer. His reply WAS smpIl uecl'hIS 10
answer tlc Questions. / think, dnder Tree cicui-
stances, the return rs 1t stands inc reHof must 10
Trtuin,d - thc Court Oi beuCl"l ocoHIOhs.
,dIatcly after the rendering oil Judge Donohuo "
decision Dr. Phelps. accompanied by John a. foley'
went before Judge Giier~lccNe III tde Court oi general
sessions where Mr. Foley moved for the release oI hts
client Oh his own rec0Snizincc, on the ground thd'
Judge Donohue had held that he Was privileged uh"er
the statute 10 refuse the quest os Assistant
Disrict-At;oney Rollins as,tiied Dr. rhcp' 'Heh ie'
the courtroom with understanding tha he va, to
actr before the Grand jars at Ii ociOch ts morning.
wien the same questions viii ptuhd'I ~ repeated
,-n..r indie Jsnsu.s r4i.I. Dg. rHts can refuse TO
TESTIFY Oh The ground that IA W"ud cilu'idV Hi''''
aud the jury will nave no power l" c'hPt i'
v,,r n he kts tn. culrst, Il i believed 10 Will,
IL. ca. not DE used witness ana ne VIII bt d7ch -"
from further attendance. d., .
Ige Grud Jury devoted It's session yesterday to a
large number OF cOu Cis>, but made ~ progress IA IN
yesiglting the duel. None oi ga, snpl eH gl
The a3r responded To the papers ISSUED 10 cause the
al