The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-03-07
IEWISOHN NEED NOT ANSWER.
APPELLATE COURT SUSTATNS HIM
IN Garfield CASE.

,,,.. lie was Not Obliged to Tell whether
lie was In the Garfield House and That
the Penal Codes Exemption From
prosecution 10 Not broad Enough.
The Appellate Division decided yesterday
that Jesse Lewisohn was within his rights
in refusing TO tell whether he had been In
canseld's FoIty-fourth street gambling
house. That and other questions we're
M, 10 Mr.. Lewisohn In the proceedings
before Justice Wyatt OF the Special Ses-
sons.
After Mr.. Lewisohn's refusal to answer
he was arrested on a charge Of contempt
~ court writs OF habeas corpus were
sen,red, but were dismissed by Justice
Scott in the Supreme Court, and the witness
vas remanded to custody. Alfred Lau-
,erbach, Lewisohn's counsel, at once ap-
pealed from the dismissal Of the writ. As
sistant District Attorney Cans, who argued
the Gaze for the people, said il would be
taken 70 the Court Of Appeals at once.
LAWYERS who had n chance TO read the
decision yesterday seemed to regard II as
a severe blow TO Mr.. Jerome in his anti
gambling cases
Justice Laughlin writes the prevailing
opinion, which Ii ooncurred in by Justices
Van Brlnt and Ingraham. A dissenting
opinion, ooncurred in by Justice Hatch,
Is written by Justice Mclaughlin. Six
points we're raised by the appellants coun-
sel but the decision does not 60 beyond
one--that Mr.. Lewisohn had . constitu-
tional right to refuse to answer the Ques-
tons on the ground that they would tend
70 incriminate him.
The District Attorneys Office relied upon
Section $40 Of the Penal Code. which Gays
No person shall be excused from giving
Sseding Tor a Violation OF this chapter against
mony would tend to convict him Of crime;
hut lch testimony cannot b received against
him upon any criminal Investigation or pro-
ceediDg.
II was oontended In opposition that If
Mr.. Lewisohn were compelled to testify
that he bad visited Canfield's and to answer
questions relating to his visits there and
q to what happened on the occasion OF
those visits, Information would be dis
cjosed which would afford basis for a
criminal prosecution against him, even
against him on trial. The decision eays:
The NTH amendment TO the Federal Con-
compelled IL tny criminal cas-. 70 Be ,s Wit.
stitution, but In the second State Constitu-
lion. which -: ratified IL is' r. pro- vision
sssse Is that contained 10 the Federal Con-
Gitution,. Similar provisions. In some In:
Il sSs oonsssutoDs q the ssvefs states
FOR. Tie courts Tor jydicisl ogn.tIustiSn The
as In this. il was held that immunity against
the introduction upon q criminal prosecu-
tent OF the constitutionai guarantee. 1t Is
manifest that these correspondents provisions
q the Federal and STATE ConssisHdtioI, ws,s
snS sF Sesn Declared 81 the sqprem. Court
Of the United States. they should receive the
The Court then reviews At length the
Federal and State decisiops on the SUBJ
jeot and relying largely on Counselman
w. Hitchcock ga U. 8. SD and People
ex rel. Taylor vs.. Forbes (i+3 N. Y. 2io).
reaches this conclusion:
1t necessarily follows that section 50 Of
sss: re- ss;S' sr sss
ssss.s % and or sSs spS
legend zen 1e:so"sSls doubt that the
could not aid the prosecution In proving
to sos Son 1t The n r-sser d any Sr%s % e!m
Il ;ls :s.. :ss z sS ss :Sss
not be permitted e make We q 4 q bad
rest largely with. the witness hln.eif.
In the case At bar there 70 nothins 70 In
e. bad & a n: Ct Hs
: .ns sse q m isasas You'd
. .soniG BE- DrTsfSSSs fo1 ssmbins
s.S S. sss e. : and v iSs: else
I'M. .!,denos !. soS.hs e Be e su BY
Had !, been elieited Il mlght disclose sources
f fSa;Sr fr% |. n1t 81 srnsd
Which the rristor decilnsd TO answer were
sSicS might aid tSs people In q cri.ninal
Es:nS is. Ss:t r. 81 bosS sS
tsin . decison on the inertia. sdjudicstins
SS,S.S .ss rt ~ %: p ahs 70
ssn%,usi p e. *. only pwpo:e o.
sos s.es.ssrS . siSs thsi point spscisi Coz
=; ;s ;sS :.:., ;s:: u, =:
ss sss S Ssss Z in e.: s$ a.s:is. .
ssy opinion on ths chr a,setloa. vhicl
esr hands il foIioSs. .thcrrfors, that the
oofps sasisissd and ths fsIssor dlschsissd
..In Oh, disstn,iIs Spinion justice
The oourl's oonclusion, 'arst. beoauss th~
quss'ion discussed In the prsvsiiing opin-
ion h not before ". end srcond. ~er..
ths conclusion reached y In conflict VIII
the decision Of the Court of AppsaiA. Which
He ssys tks susss loos asked AZ I<ytsohn
f.hssh~r he had bssa IN CanAsld's bovasl
could no, have coa I'D him of any ertips,
even an the assumption thsi - answered
N the Affirmative.
Jsslos Mclaughlin ads
t... . sssss q *. sssssisas' ss1 ~ ssSs
soeH hs,s cndsa te lhcftAlnsss u ~ ~,