New-York tribune., 1903-03-07
UPHOLDS ArR. LEWISOHN.
10pellate Division Holds He Might
Hare Tmcrim;aGted Himself.
,s.owr 70 GO TO HIGHEST COURTS.

Jerome TO co TO HIGHEST SoOn' o
1be Appellate Division Of the Supreme Court
Yesterday handed down q decision oVefFall"S
Tpstiee SCOTS order Of December SO IN the case
oe yaaaa IAvr.sohn. who was held on the cnaTge
~ contempt Of court in refusing to tell at tne
aa.net Investigation before Justice Wyatt OF the
court Of Special Sessions, what ne know aUou'
Canheid's gambling house. in East Forty-fo0 I .H
A. Tbs decision orders the release OF, MT
Lewisohn from custody, wnicn means uio
charge Of a bond, as Mr.. Lewisohn mas Oeeh o'
I,berty under bail pending decision Of the case
nistr5ct Attorney Jerome will carry the case 10
the Court Of Appeals
JustIce IaushIin writes the opinion OF ths
AppelIate Division. and Presiding Jusuce We"
Rrunt and Justice Ingraham eoneuF "itn nilil'
yus4ice MCLAUGHLIN writes q dissenting opinion'
in which Justice Hatch ecncurs In summing uP
the case Justice Lsughlin says
In the case at bar there e nothing to ndica's
Willingness snsSeE any question tto rea5hdg ond be be
period Ehsn the S'SrSse rc1ton Et azsinas him If
should be prosecuted for gabltng at Gsnneo
be 70 show tst there when t he vas RIB SheTs s
and who else was there % m at .e,sd e by the questions
which he declined to answer Had it Seen & peo1s
Upon th Which 70 crim1sl ProssSutioI sssiRRse Rs
the rea1or It is not hs me 1y Iesons Which
the relator declined 10 answer were Of such pTH5
noa act which might aid he people
criminal prosecution sgs1ss tne naso TO Obtain
ecisoR The merits adjgdcsstIrTE sITx S.eass fhs m
EstG. ay rather Rs ta he kss
become liable to q criminal prosecution: the Sniy
e is not necessary for rs TO give that point special
consideration.
In dissent Justice Mclaughlin writes In part:
OF course IT goes without saying that hat hs TSss eHp1a
S jTst ss we'll Be urged that answers to questions 2f
esF he he Sa on Il Ra sHf Gnsd s. would
tend to ncrinate him As 1t can that the s q
to the Ra sS @ esns Srf sne ~s
were ssksd. he should be excused from answering
OF whether witness shall be excused from answer
NAV s ..nd to irRinste Rd him always depends
understand the law, upon whether thS cout' Gu 0dE
that TIE privilese Claimed is made in good faith.
but that the answer may tend to do %nat t9e Tf h-
neso recorS which Shows that the privilege vas claimed
an g0Sa tsf o he 9Ur SSesns a By any posb
have tendency to do what the witness cialneo
they would.
Justice Mclaughlin further holds that even
II the answers had tended to incriminate Mr..
Lewisohn he was not excused from testifying'
and that to hold otherwise would entirely dis
regard Section 342 Of the Penal Code, which
refers especially to the giving OF testimony III
gambling cases. 49,
who was at the Appellate Division in the after
noon. said that an appeal would be taken in the
Iewisohn case at once. The question involved
was one Of great Importance. he said. ano II
was essential that 1t should be settled py the
Court of Appeals.
District Attorney Jerome said before ne went
TO his country home at Lakeville. Conn., IN tne
afternoon. that he had not read the decision'
and added: A.. so,,,o,
II do not know on what grounds the declsi3n
9. hosed or whether or not 1t touches upon the
- ieo1it, oF the .Iohn Doe proceedings. In any
sTsnt no matter what the decision was, tnere
would have been an appeal under the oecislon
- toI,er nv me to the Court Of Appeals, ana. II
necessary. to the Supreme Court of the Oniseo