The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-02-20
THE FIFTH AMENDMENT.

THE FIFTH AMENDMENT.
There is nothing in the federal con-
| Stitution, as construed by the courts,
! in conflict with this conclusion. The
fifth amendment, relied upon in the
argument, is, like the other amend
ments. restriction upon federal pow
er, and does not extend to the states:
/ Livingston VS.. Moore, Pet. 551. Sub
| seuuent cases are to the same effect.
The case Of Counselman VS.. Hitchcock,
| 142 II. S 547, arose under a federal
: statute--an act to regulate commerce,
in a federal court. 1t cannot apply
/ here, and is entirely consistent with
the principle of the preceding cases.
The remaining questions call for but
| brief notice. 1t is contended that the
offense was not committed in open
J court but before the examiners, who
. had full power to commit for refusal
, to answer. under the act of Feb. 2b,
( 1881, and, therefore. the sentence of the
court is illegal We cannot adopt this
! view. The answer Of the relator to the
rule issued by the court was
presented and read in open court
by his counsel and in his pres
encc In this answer the relator
refused to obey the order of
, the court by answering the questions
as directed. This was a refusal in open
court and, without more, was sufficient
to warrant the proceeding. That he
also refused to answer the same queS-
tiOns before the examiners is immater-
ial, in the view we take Of the proceed
ing. 1t IS, therefore, unnecessary to
enter into a discussion as to whether
a refusal before the examiners was
! in legal effect "in open court" within
, the meaning of the act of June 16, 1896,
/ or whether the court could punish in
this summary manner for a refusal to
answer before the examiners. For like
! reason the argument that fine only
could be imposed for an offense not
committed in the presence of the court
does not apply, and requires no dis
cuSsiOn.
The argument that many of the ques-
tions which the relatOT refused to ans
Wer involved no offense against the
election laws and We're not material to
the issue of the contest is rather
against the relator than in justitica-
ton of his refusal to answer. An ex-
animation of the questions sent here
shows very clearly that this is true of
most Of them. 1t is also true that those
questions did not necessarily involve
! self-criminating answers. The situa-
. ton in this respect is like that in the
, case of Com. V. Bell, supra, where the
! contumaCiOus witness refused to ans
! wer any question that could have had
! even remote bearing on the material
facts. Certainly, f.''y responsive ans
| wers to many of The questions that
| We're put him could not
! have had the slightest tendency to
criminate him." On this point the Su-
| preme court further said: THE relator
was not he final arbiter of the question
| whether his answers to the interroga-
tions propounded would tend to Grim
mate him. 1t was the plain duty of
the trial judge to decide that question"
So in the present case, many of the
| questions do not indicate, even remote
| ly, how answrs could tend to criminate
the relator, and, under the decision re-
| ferred to, the refusal to answer them
| was, prima faCie a contempt of court,
| without reference to the constitutional
privilege. Whether the question calls
for an answer which would tend to
criminate the witness was for the judge
to decide in the first instance; and his
negative decision must prevail until
| overcome by satisfactory proof to the
contrary. In addition to the protection
afforded by the 10th section of article
! s of the constitution. there is in the
present case a refusal to answer ques-
tions which did not tend to criminate
and were, therefore, beyond the pale OF
tn privilege under the bill of rights.
Th relator was duly sentenced by the
court, which is an appropriate method
for court of criminal jurisdiction tC
declare it's judgment and the punitive
consequences.
What we have said sufficiently deals
with al 1.-The material questions present
ed by the record of this case.
1t follows from what has been saiC
that the relatOr was not unjustly re-
strained of his liberty, and, having beer
released on bail pending the hearing
and consideration of this case, without
having complied with the sentence o.
the court below. eh must be remandeC
unto the custody of the respondent. Il
the end that said sentence be compiled
with. 1t is accordingly
ordered that the relator do forth
with surrender himself into the custody
of the sheriff Of Lackawanna county
TO the end that he sentence of the cour
of quarter sessions of said county, pro
nounced against him on December 20
1898. for contempt of said court, bt
fully executed and it is further ordered