The Providence news. (Providence [R.I.]) 1891-1906, 1903-10-21
Courts Decision Gives Prose-
eutlsn Of Garfield a Bump.
GAMBLERS ARE JuBILAxT.
Jerome says frocsstIags VIII Commence
Soon and That No Hes Sufficient
Evidence 10 Convict.

court of appeals decided yesterday.
The opinion OF the court was written
by Judge Bartlett and all the judges con-
CURED. The other judges who sat In ms
case were Werner. Haisht. o'Brfen. Par
ker and Cullen
The court of appeals decision sus-
tains that OF the appellate division. which
reversed that Of the court below ana
thereby upheld Iewisohn's right TO refuse
TO give testimony concerning his rela-
tions with the alleged gambling house
OF Garfield.
The point at issue was the constitu-
tionality OF that section OF the penal
code which excludes gambling cases
from the operation OF the constitutional
protection OF witnesses against self-in-
elimination. District Attorney Jerome
argued and the trial court held that
Lewisohn was guilty Of criminal con-
tempt In refusing to testify In secret
proceedings looking to the prosecution
OF Canheld.
The appellate division sustained Levi
sohn's writ OF habeas corpus. holding
that section OF the penal code unconsti-
tutionsl. Among the points made for
Lewisohn In the argument before the
court Of appeals were the contentious
that the inquiry against Garfield was
not a legal proceeding In that the public.
including his counsel. was excluded. and
that every court in every state where the
question has arisen. including the ia
nous case OF Aaron Burr. has confirmed
the protection against self determination.
In its opinion, the court discusses the
contention Of Lewisohn that section 3%2
of the penal code did not protect him I'm
his constitutional rights where no per-
son shall be compelled in any criminal
case to be a witness against himself
A LIBERAL INTERPRETATION.
The court refers 10 its decision In Peo-
pie VS.. Hackley, which IL now practically
reverses. saying: III is with no little hes
itation that this court feels constrained
TO adopt a less technical and more liberal
Interpretation OF the constitution. The
Federal and state constitutions are the
same on this point. and the United
States supreme court. In the case OF
Councilman VS.. Hitchcock. has placed a
most liberal construction on this provi-
sion OF the constitution, where IL was held
that a witness need not answer questions
that might tend TO criminate him when
examined under the jurisdiction OF the
interstate commerce law.
I'VE are OF opinion that the contraction
given TO the very plain and clear words OF
the decision in the Councilman case Is
reasonable and fair and accords a wit
ness only such protection as the plain
letter OF the constitution confers. II this
ness might be required TO disclose cir
cumstances that would enable the public
prosecutor to institute criminal proceed
ings against him, wherein he might be
convicted without the use OF his evidence
taken I'm another case.
1T Is doubtless true that cases may
arise where the mere fact OF the witness
asserting that to answer the question
would not be conclusive. Where the
On hat ha
Is mere device TO protect a third party
and that the witness Is i'm no possible
danger of disclosing facts that would
lead to his own indictment and conviction
and answer may he insisted upon.
Any general rule is subject TO abuse.
and the court will he always vigilant 10
see that II Is not employed I'm the interests
OF fraud and TO secure a failure of Justice
II Is clear that in the Councilman case
the rule was properly applied and we ac-
cord to that decision our full approval
This distinction Is 10 he kept I'm mind I'm
the attitude OF witness before the court
where complete statutory protection CO.
extensive with the constitutional provi-
sion exists and where II Is lacking
In the former situation the witness Is
deprived OF his constitutional right Of re-
fusng To answer.
WAS JUSTIFIED IN REFUSING.
The point was decided by this court
in People vs.. Sharp and by the supreme
court or the United States in Brown VS.
Walker. We adhere 10 the point thus de
cided. In the latter situation where stat
utory immunity does not exist, which was
dealt with by Chief Justice Marshall, IL
rests with the witness whether he will
ed out. where the refusal is clearly a
fraudulent device to protect a third party.
In thus extending the rule as hereto
fore laid down by this court We are per-
suaded that the complete immunity
sought to be afforded the citizen BY the
constitution from being witness against
himself in any criminal case IL fully Sc
cured. The evolution Of this right has
been slow indeed since the dsys of the
Star Chamber In England. when dissent
ers on a refusal 10 be sworn against
themselves were whipped al the carts
tell and In the pillcry. had ears cut OF
and noses slit. were fined enormous sums
and imprisoned for years
The methods OF the 18th century were
long since abandoned. but the desire 20
elicit from a suspected or accused person
evidence that would send him 70 the cell
or the scaNold unfortunately survives.
and this court has In recent year. been
called upon TO condemn on several occs-
sions modes of procedure having that end
in view.
I'm the case AZ bar in view of the prin-
justified In refusing To answer the dues-
tions propounded to him on the ground
that the answer would tend TO incrimin-
ate him. II is quite impossible for the
court To say TO what extent the witness
would be criminated or placed I'm jeop-
ardy He might be subjected to proceed
ings Involving penalty or forfeiture OF he
might be tried and convicted as a COM
mon gambler. which II declared by stat
ute 10 be a felony. All this might be sc-
without using the evidence
against him given herein.
We assume. as did the appellate divl-
sion. that II is not contended by the pros
ecution that the question which the rela-
tor refused 90 answer were preliminary in
character. but rather that n Is conceded
both parties that they are 40 framed az
60 call for y decision on the merits The
order appealed from should he affirmed.
the writ ~ habeas corpus sustained and
tho relstor Uewisohn) discharged"
WOULD TRY CANFIELD ANYWAY.
Before the decision was announced Mr
jerome said that ~ IL wss adverse he