Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1891-07-03
GIVEN ACCESS ONLY.
BOOKER AND COUNSEL CAN EXAMINE
BUT NOT HAVE HIS BOOKS.
Jadee witt Decides that Having surren'
dercd Them Voluntarily He Cannot
Recover Possession of Them.

The books and papers of Lewis Booker
will be retained in the custody of the City
Sergeant, and will be used as evidence in
his trial,
He and his counsel will be afforded every
facility for making a thorough examina-
ton of them and of conferring with refe-
renee to their contents.
This in in effect what Judge Witt deci-
ded yesterday on the prisonre's motion for
the recovery of possession of these arti--
clos, which he claimed as private property.
Tho Judge delivered his opinion lew min
utes after IL O'Clock. Tbere were very Few peo-
pie in tho courtroom. Booker was accompanied
by Judge II. II. Marshall, Of his counsel, ana
several relatives and friends. He was looking
as well as he has ct any time since his arrest
OPINION OF THE COURT.
Az soon as proceedings were opened Judge
Witt read his opinion, which was as follows:
This Is petition filed In this court by LOWS
Booker, who stands indicted for a felony, in which
said petition the defendant In the indictment
prays tnat certain books and papers mentioned
In the petition and now in the custody OF the SER
geant 0f this court be turned over 70 him by the
said sergeant.
II is alleged by tho said petitioner that these
books contain the transactions between hu-
self and Emile and Edward HeneSinckoi.
bis wards, he having some years ago qualifed es
their guardian In the Chancery Court OF the city
Of Richmond, and that the said books and papers
are his private property; that they have Deen
without warrant OF law taken from his posses
sion for the purpose OF being used against nm
in n criminal prosecution now pending against
him in this court, and that by such unlaWtui de-
tcntiOn he IL deprived OF an opportunity 20 MAKE
proper defence.
THE CoMA0SWEALrHs REILLY.
In reply to this petition the attorney for tho
Commonwealth produced the af1davit OF FRANK
W. Christian, the attorney for Emile and "a
ward Hanewinckel, which sets forth that the
said books and papers mentioned IN the petltloh
were delivered 20 him az counsel for the Hane-
winckels by Judge II. II. Marshall, counsel for
Booker; that the said books and papers related
exclusively TO the TRANSACTIONS OF the ll sniu
Booker as guardian and agent ol EmiLe
and Edward Hanewinckel; that afterwards
on tho Sth day Of April, 1891, ne
christian not being desirous OF keeping
the said books and papers longer in his possea-
sion, but at the same time being unwilling 10
return them 90 the said Booker. agreed that they
should be placed In the hands OF a responsible
third pnrty--to wit, the City Bank OF Richmond
where they should remain suDject 10 the
Inspection OF the counsel on either SIDE.
In accordance with this agreement they
were 70 deposited and there remained
until the 9th day Of April, 1891, when
the said Booker was brought before the Police
Justice of the city Of Richmond upon several
charges Of felony alleging that the said Booker
had embeZzlcd the money, stocks, and securities
OF his said wards, when nj the request OF tho
Attorney for the Commonwealth they were
hronght' into court and surrendered TO the Police
Justice Of the city of Richmond by the said City
Bank. Those are the facts In THIS case
THB PETITIONERS CLAIM.
II js claimed by the petitioner Booker that by
the fourth and nfth amendments 70 the Consti-
tuition Of the Cnited States he IL protected
against unreasonable searches and selzures OF
his private papers. and that he Is not compelled
10 give or produce any evidence whlrn may ,ehu
TO crimlnate him in any criminal prosecution.
These two amendments TO the Constitution have
recently been construed by tho Supreme Court
In the case of Boyd rs. United states, reported
I'm the ll6 United States Reports, and tins case
is relied upon by the counsel for tho petitioner as
con ,lusye of the rights of said petitioner against
the commonwealth.
Let us see what that case was. 1t appears
from the record that tho attorney representing
the Government was proceeding 10 enforce its
laws against importing certain articles into the
United States before the duties thereon
were paid, Congress, in order TO facilitate
tho enforcement Of these avs. had enacted
n law which allowed tue District Attor-
ney, upon aflidayit setting form thht ccr-
tain papers were In The possession OF the
defendant containing certain iactS mentioned,
10 have an order of court requiring the proluc-
tiOn Of these papers or else the facts 80 stated
should be taken as true. Tho lower court IN That
case made the order compelling the defendant
10 produce tho papers mentioned In the affidavit
of the District Attorney. This order was obeyed,
the defendant protesting against the constitu-
tionality OF such n proceeding.
WHAT THE COURT DECIDED.
Upon this state of facts the Supreme Court was
called upon 10 decide whether or nos law OF
Congress which roqRir0da "a man 90 produce evil
dence against himself In n criminal prosecution
was valid, and Mr.. Justice Bradley In an able
opinion decided clearly and distinctly that tho
unlawful search for and seizure OF mans pr-
vate papers in order 10 use them as evidence
against him In n criminal prosecution was con-
trary TO the spirit of laws and positively pro-
hibited by the Constitution ofour country.
81 a no In Ia n
fcer can force from the possession OF citizen
evidence upon which he may be convicted OF
crime.
renders 20 another sdch evidence? Was the
law made 20 prevent the Commonwealth from
using testimony furnished by some one else
other than the prisoner? Suppose "A man were
charged with murder and had written letter
containing statements of damaging character
and that letter unsoalcd had been mslaid or
accidentally placed where third party became
possessed of ii and delivered to the public prosc-
cutOr, can IL be said that such evidence would,
upon motion OF the prisoner, 10 taken from the
Commonwealth even though 1t proved heinous
crime, and given over to be destroyed or con-
cealed? surely not.
WILL RETAIN THE BOOKS.
Both Of these constitutional amendments pro.
coed upon the idea that no Evidence OF crime,
whether it be written oral, shall be allowed 10
be introduced when force or violence Ia used 10
procure 1t. That is TO say,.you cannot compel a
man TO surrender his private papers, nor can
YOU compel him TO testify orally against himself,
bat you may use his private papers In evidence
againsl him II gained Possession OF otherwise
than In the manner prohibited by the tOnstitu-
ton, and so you may use his oral statement II
obtained from him in a manner not prohibited
by law.
In other words the constitutional prohibition is
not against the introduction Of papers and ad-
misqiOns as evidence except when they arc OBJ
tained in the manner mentioned in the amend
ments themselves
/ am therefore of opinion that these books
have rot been unlawlully taken from the
possession Of the petitioner that they were vol
unfairly given up by him into the hands Of the
City Bank, and the possession OF the Common
wealth Of said books and papers Is not such
posses ion as II prohibited by tue Constitution of
the United States. The petition Is denied.