The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-03-07
The Decision In the Lewisohn Case

from famine
The Decision In the Lewisohn Case.
A decision of great interest was rem
dered yesterday afternoon by the APP
pellate Division Of this department, in
the case Of the people on the relation
of JESSE LEwIsoHN against the Sherin
Of this county and CANNON, the peace
officer who arrested Mr.. LEwIsoHN.
This case arose out Of the celebrated
criminal information laid by the Dis
trict Attorney against RICHARD A.
CANrIELp, accusing CANrIELD OF the
crime Of gambling.
On the hearing before Special See-
sions Justice WILLIAM e. WYATT, In
the latter part Of December. Mr..
LEwIsoHN had been subponaed -
witness, and he was asked:
%. Have you ever been In the premises No,
East Forty fourth street In your life A. ! de-
cline 10 answer on the grounds given before
Which grounds, among other reasons.
were that the answer might tend to
incriminate him, and that it might tend
to expose him to penalty or forfeiture.
The Court directed the witness to an
swer; the District Attorney promised
Mr.. LEwIsoHN absolute immunity, and
offered to accept him aA the States
witness. The Court then again d.
rected the witness to answer, and the
witness again declined. The Magis-
trate thereupon issued q warrant for
the arrest Of Mr.. LEwIsoHN, and GAN
NON, a peace officer, arrested him.
Mr.. ALFRED LAuTERBAcH obtained .
writ of habeas corpus and a writ Of
certiorari, and sought to obtain the re-
lease Of Mr.. LEwIsoHN, but Mr.. Justice
SCOTT of the Supreme Court decided
against him, and dismissed the pro-
oeedings. and remanded Mr.. L1wIsoHN
to the custody Of the officer.
An appeal was taken TO the Appellate
Di visi on, and the question before the
cours was whether Mr.. LEwIsoHN was
justified in refusing to answer the quee-
tons on the ground of the privilege oon-
ferred BY the State Constitution which
provides among other things that no
person shall be compelled in any crimi-
nal case TO be a witness against himself.
a provision which was copied from the
Fifth Amendment to the Federal Con-
stitution. II the witness was not right
in refusing to answer. he could be pun
ished for criminal contempt, or could be
prosecuted for misdemeanor.
The District Attorney maintained that
LEwIsoHN must answer because the
Penal Code in it's Gaming chapter
provides that no person shall be ex-
cused from giving testimony upon any
investigation or proceeding for viola
ton of this chapter. upon the ground
that such testimony would tend to con-
yict him Of crime; but such testimony
cannot be received against him upon
any criminal Investigation or proceed
ing
This section, II was claimed. Afforded
the relator the full measure Of immunity
guaranteed by the State Constitution.
On the other hand. Mr.. LEwIsoHN's
counsel contsnded that although Lew.
IsoHS's own evidence could not be In
troduoed against him on the trial. infor-
nation might be disclosed which would
afford a basis for criminal prosecution
against him for soms al the crimes en-
braoed in the Gaming chapter Of the
Penal Code.
The Appellate Division-in . majority
opinion, written by Mr.. Justice LAUoHiIs.
and ooncurred In by Presiding Justice
VAN BkUsT and Mr. Justice Is0RAHAh-
has decided that LEvIsoas was right.
has reversed the special Term order al
Judge SCOTT and hes discharged tho
witness from custody.
The majority opinion II the eouIt u
based on too great osses-ons In The
supreme Court ~ the United States
CoussFiAAs 70 hirosoocH, decided "
January, 1899. aud ths o,asf decided by
the Court ~ Appeals ~ this state. 10
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