New-York tribune., 1903-07-23
A CHILL FOR TAMMANY.
DOCK INQUIRY NOT VAGUE
Nwphy, Meyer and Cram Charged
zcith Specific Crime.

inaI action was commenced against Charles
n. Murphy. Peter +. Meyer and j. Sergeant
Cram This information WIS laid before
Magistrate Mayer. and it is in writing ana
describes the nature of the crime, Its date
and that IL committed within the period
prescribed by the statute Of Limitations, and
was committed within the County of Se*-
York.
This declaration from The District Attorney
was made in connection with the application of
John Fleming. of the firm Of Brown & Fleming.
for a writ OF prohibition preventing Justice
Mayer from proceeding with the examination Of
Mr. Fleming who has figured a witness in
the John Doe" proceedings in connection with
the doings of the old Dock Board
It is regarded purely as a coincidence that the
application of Mr. Kellogg should be brought
before Justice Bischoff. the only Supreme Court
Justice IN this county whose term expires this
year.
The investigation has been conducted by As
sistant District Attorney Clarke and stayed
by an order issued by Justice Scott. in the su-
preme Court. directing Mr.. Clarke and Justice
Mayer to show cause why the further examna-
tion of Mr.. Fleming should not be prohibited
L. Latin Kellogg represented Mr.. Fleming in
the hearing yesterday. Peter A. Hendrick ap
peared for Charles F. Murphy. leader of Tam
many Hall and president of the old Dock Board.
Mr. Hendrick stated that Mr.. Murphy was
party interested in the John Doe inquiry, but
took no part whatsoever in the proceeding be-
fore the court. which was instituted by Mr..
Fleming solely on his own account
Mr. Kellogg said the proceeding which it
sought to prohibit was carried on in illegal
manner under the alleged provisions OF a
tain statute Mr.. Fleming appeared a wit
ness and expressed his willingness 10 testify,
but asked that he be represented by counsel.
This application was denied, but his counsel was
permitted TO remain in an adjoining room and
Fleming was permitted to consult him to
answering any question to which he in
doubt. Mr.. Kellogg said the examination lasted
two hours and covered every conceivable SUBJ
ject.
What was the crime alleged?" Justice
Bischoff inquired.
NO CRIME SAYS KELLOGG.
There was no evidence of any crime. and
crime. That is my point" Mr.. Kellogg replied.
THE whole proceeding was apparently a drag
net brought for the purpose Of securing evil
dence for some prosecution of other persons and
for some other crime.
Justice Bischoff inquired if there any pro-
vision in the Code of Criminal Procedure author
izing the examination of a witness TO al
legged criminal act prior to the issuance Of a
warrant for the persons charged with the COM
mission Of such crime.
Mr. Kellogg admitted that there was such a
that no affidavit had been submitted by the Dis
trfct Attorney specifying particular crime and
the date Of its commitment.
''Oh. yes, there is" interrupted Mr.. Jerome.
ION this motion I shall submit affidavit
sworn TO by me that there is information
which states that a specific crime has been COM
mitted at a specific time and within the limits of
the city of New-YOrk"
We'll. we are entitled to know under the
%lo& arg,,, al
Iogg.
Mr. Jerome said that one Of the reasons ad-
vanced for the granting of the writ of prohibi-
ton was that he had made certain statements
to the newspapers.
Il don't see what that has to do with this
matter" he continued; but I may say that
did not make the statements attributed to me
in the newspapers think it rather absurd that
this court should be asked to grant such writ
to redress an evil committed by the District At
torney because Of newspaper articles"
Justice Bischoff said the principal ground Of
the motion was that the magistrate had ex-
ceeded the scope OF his jurisdiction.
LEGAL QUESTION THE ONLY ONE.
1.-The legal question is the only question here"
added the Justice.
Mr. Jerome contended that the jurisdiction Of
the magistrate was well established in such
proceeding The only thing was that Mr.. F1em-
ing, laynan. in his affidavit inferred that
from the general nature Of things and the nat
ure Of the questions put to him there was no
information in the case
MI. Jerome then made the important declara-
ton quoted at the beginning of this article. He
argued that Flening's examination was per-
fectly legal and in accordance with the pro-
visions of the statute. He said Fleming had
testified voluntarily.
He did not" cried Mr.. Kellogg; "he was
suhpenaed-"
We'll, he didn't refuse to answer" Mr.. Je-
rome retorted.
He did not want to go to JAIL" remarked
Mr. Kellogg
Wen. not for while I hope" was Mr.. Je-
rome's reply.
Justice Bischoff said that If the magistrate
acted within his jurisdiction no writ of prohibi-
ton should be granted. The rights Of a citizen
however. should not be invaded.
COULD HAVE OBTAINED INFORMATION.
This man could have refused to answer any
questions he chose. and he would have been
arrested and the matter decided writs Of
habeas corpus and certiorari, as in the Levi
eohn case. We would then be compelled to dis
close information. I personally have no objecS
ZION 10 disclose it to Mr.. Kellogg said the Dis
trict Attorney but think should not do so
under the circumstances, as I think it would be
violative OF law"
IF a witness is TO be examined in such a
manner" said Justice Bischof may the exam
fnation not be tyrannous and oppressive? Is not
This proceeding by inquiry before magistrate
,1surping the functions and jurisdiction OF the
grand Jury? Has that been contemplated by
law?"
Yes" Nr. Jerome replied. "and 1T has been
sg.s,T I