New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1903-10-21
LEWTSoHN WINS CASE.
HE NEED NOT ANSWER.
Court Decision on Relations auth
Garfield Gambling Place.

Albany Oct 20 CspcciaD.-The Court OF Appeals
to-day eecideo that Jesse Lewisohn justified
IN declining answer me question whether he
was ever in the house at Nc East Forty-fourth-
81; New-ycrk. put 80 him during the proceedings
begun by District Attorney Jerome TO find out IL
Richard A. Garfield conducted gambling house
that number.
Lewisohn's contention that he is protected by
the provision OF the State constitution. that per-
son be compelled in any criminal case TO be a
witness against himself is sustained by the court
The decision defines for the first time what is
comprehended by that section OF the constitution
ana in doing overturns decision made by the
court many years ego. and which 10 date has been
the accepted Interpretation OF the court. OF the
constitutional Immunity. Judge Bartlett writes the
opinion. all the other judges concurring Judge
Gray IN a memorandum gives his personal opinion
JUDGE BARTLE-T-s DECISION.
Judge Bartlett a; considerable length discusses
the necessity OF broadening the Interpretation OF
the constitution with regard TO immunity OF W.T.
nesses from self-incriminstion. He says;
is with no little hesitation that this court feels
coasfrsined 10 adopt less technical ana NOR 1,
federal and State constitutions are the same on
this point and the United States supreme Soost
has placed most liberal construction on TIM, TINS
sss wSs one n which the witness claimed pro
lection IN an inquiry under the Interstate S"Hi-
We are OF the opinion that the construction given
to The very plain ana clear words ., shs and
fair. and sccords witness only snch pIetecNIy9 n
Sbis IS NOT the proper construction. the witness
y~ieht be required 10 disclose circumstances that
~9n yi.f rgeoeednss against him wherein he
nigh; be convicted without the use OF ms e''
dence. taken in another case
with regard 20 the District Attorneys conten-
ton that witness might invoke the immunity
with the fraudulent intent merely 30 shield thiru
party. Judge Bartlett says:
Where the court can see that the refusal 20
and that the witness is in no possible DANCER o.
disclosing facts that would lead 70 his own inalc1
Tnent and conviction answer may be INSISTED
upon. Amy general rule is subject TO abuse and
not employed in the Interests OF fraud and TO Sc
failure OF justice. -. -, -,
In thus extending the rule as hitherto aid a9 3
~ this court we arr persGadea that nc 1 ,
constitution from being a witness against himself
IN any criminal il fully secured. The eFoiu-
days OF the star chamber in England. when de-
PENDANTS. on refusal to be sworn against tneIn-
had ears cut OF and noses slit, were hned enor-
In the case at bar. IN view OF the principles of
law discussed the relator is justified IN refusing
crognd that the answers would tend to eliminate
nim II IS quite possible i1F Ie Tevrt "a %Su9
ne eliminated or placed in jeopardy. lie might be
se9Ts b 20 2,irf b tred and Convicted as corn
mon gambler. which is declared by statute 20 oe
.sing his evidence against him. il given herein
We assume as olo the ApIeIIate tlvisi .t ' a.
Questions which the relator refused were
preliminary character. but rather that Il is con-
oeded by both parties that they are SO framed as
call for a decision the merits.
The order appealed from should be afflrlned. the
wit tof habeas corpus sustained and the relator
tlsewisohn) discharged.
JUDGE GRAY'S NOTE.
The decision Of the court is in effect reversal
~ its own judgment i'm the famous earlier case or
the People agt. Hackley. is admitted by Judge
Gray in his concurring memorandum. in the course
OF which he says:
What hesitation have in agreeing in affirm
70 change a rule Of construction which was early
laid down I'm this State in the case OF the People
asst. Eackley. and override the authority OF that
. case. ] find decision in this court " hich has
gone that far. hlit the rule % that being one
- evidence Of procedure. may be changed. and
should be changed 81 not consistent with .the en-
joyrnent Of a measure Of the citizens constitu-
Tional rights.
Assistant District Attorney Cans received word
from Albany that the Court Of Appeals had sus-
tanned the Appellate Division Of the Supreme Court
in it's reversal Of the decision Of Justice Scott
which in effect said that witnesses such as Jesse
Lewisohn must testify in the trial OF Richard Can
Acid and David Bucklin charges of maintaining
gambling house.
II viii now 5e next 70 impossible for District At
Torlfey Jerome to have any except willing wit
nesses appear against Garfield and Bucklin At the
trials month in Cortland County ard the
other IN Broome County. both having obtained
change Of venue on the ground Of prejudice against
tham In this city.
Peeinald e. Vanderbilt ana others Tor whom sub
3oias were isssued. but which never served.
may now treat the existence Of the suhppnas in
differently.