The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-10-21
LEWISOHN NEHD NOT ANSWER,
DEFEAT FOR JEROME IN CAN.
FIELD GAMBLING CASE.
District Attorney Says He WIN Try
Canncld and Bucklin Just the Same
constitutional Protection OF witnesses
Against Standardization Aflrmed.


house in New York city, the Court Of APP
yesls decided to-day.
The opinion Of the court was written by
Judge Bartlett and all the Judges concur
Judge Gray in memorandum. The other
Judges who sat in the case were Werner
lspht. O'Bren. Parker and Cullen.
The Court of Appeals decision sustains
that of the Appellate Division, which re-
,ersel That of the court below and thereby
upheld Lewisohn's right to refuse to give
testimony concerning his relations with
the alleged gambling house of Garfield.
The point at issue was the constitutions
atty OF that section Of the Penal Code which
excludes gambling cases from the operation
Of the constitutional protection Of wit
nc.,cs against Standardization. District
Attorney Jerome argued and the trial
court held that Lewisohn was guilty of
criminal contempt in refusing to testify
in secret proceedings looking to the prosecu-
ton of Garfield.
The Appellate Division sustained Lewis
ohns writ OF hnbeas corpus, holding that
section Of the Penal Code unconstitutional.
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 pubic, including his counsel,
was excluded and that every court in
every State where the question has arisen,
including the famous case of Aaron Burr,
has confirmed the protection against self
incrimlnation.
The court says.
It is estimated on behalf Of the people
that the witness is fully protected by Section
81 OF the Penal Code and should have been
compelled to answer. The section reads:
80 person shall be excused from giving
testimony upon any Investigation or pro-
the ground that such testimony would tend
10 convict HIM OF crime; that such testi-
mony cannot be reeeiyed' against him upon
any criminal Investigation or proceeding"
The rclntor contends that this section does
rot afford him full! tecton. as it is not as
broad in its prov sions as the Constitution.
This constitutional provision Is precisely the
same in phraseology as the NTH amendment
10 the Constitution of the United States.
Early in the history Of this court. in the
case OF the people Vs. Hackley, this provision
Of the state Constitution was construed.
the court holding that it did not protect a
witness in criminal prosecution against
give testimony which implicated him in a
crime, when he has been protected by statute
against the use Of such testimony at his own
trial.
The opinion in the Hackley case was written
by Judge Denie, distinguished jurist, and
II is with no little hesitation that this Court
tee! Is constrained to adopt less technical
and more liberal Interpretation OF this brief
provision OF the Constitution.
The United states supreme Court has held.
In the, case Of Counselman vs. Hitchcock.
that where person was under an examination
before a Grand Jury In an inyest CATION into
certain alleged violations Of the Interstate
Commerce act he Is not Obliged to answer
Questions where he states that his answers
might tend TO criminate him. although the
United States Revised Statutes provides that
no evidence given by him shall be in any
he United States in any criminal proceeding.
The United States Supreme. Court in that
case construed section of the Federal Con
stitution which Is practically Identical with
consideration.
We are of opinion that the construction
given to the very plain and clear words OF
able and fair and accords witness only such
protection az the plain letter OF the Con-
comes RS ,r ,ns Is hat h .he pIGpsi
to disclose circumstances that would enable
the public prosecutor to institute nal
be convicted Without the use Of his evidence.
taken In another case.
II is doubtless true that cases may arise
where the mere fact OF the witness asserting
that to answer the question would tend to
lncriminate him would not be conclusive
Where the court can see that he refusal to
answer Is mere device to protect third
party, and that the witness Ia in no possible
danger Of disclosing facts that would lead to
his own Indictment and conviction. an answer
may be insisted upon.
the Court will be always viGilant to see that
it is not employed in the interests of fraud
and to secure failure Of Justice; 1t is clear
that in the Counse!man case the rule was
properly applied. and we accord to that de-
cision our full approval. This distinction Is to
BE- kept in mind asto the attitude of witness
protection. co-extensive with the constit,i-
tonal provision, exists, and where 1t is lack
In the former situation the witness Is
fusing to answer
The point was decided by this Court In
People vs.. sharp and by the supreme Court
We adhere TO the point thus decided. In the
hitter situation. where statutory immunity
does not exist. which was dealt with by Chief
Justice Marshall, it rests with the witness
whether he will answer, or not, except, as
We have pointed out where the refusal is
dearly fraudulent device to protect third
party.
In thus extending the rule, az heretofore
laid down by this court we are persuaded
Tint the complete immunity sought to be
airlrled the citizen by the Constitution from
being witness against himself in any Grim
i!al case is fully secured. The evolution
Of this right has been slow indeed since the
DAYS Of the star Chamber in England, when
Grfrndants, on Il refusal to be sworn against
themselves. were whipped at the. carts tail
az in the pilIory. had ears cut of and noses
s,i', were fined enormous sums and I'M
prlsoned for years.
The methods or the seventeenth century
wor" long since abandoned. but the desire to
elicit from suspected or accused person
evidence that would send him to the cell or
In" Scnffoid unfortunately survives, and this
court has in recent years been called upon to
condemn on several occasions modes Of pro-
'"dlrc having that end in view.
In thr ease at bar, in view OF the principles
Of law discussed the relator was justified In
REFUSING to answer the questions propounded
10 h,m. on the ground that the answer would
for the court to say to what extent the wit
ness would he criininated or placed In
jeopardy. lie might be subjected to pro-
."Hdtng1 involving penalty or forfeiture: he
might be tried and convicted as n common
gambler which Is declared by statute to be
without using his evidence against him. II
given herein.
We assume, as did the Appellate Division.
mat il II not contended by the prosecution
70 answer wrr" preliminary in character
nut rather, that II Ia conceded by both par
YES that they are so framed as to call for
decision on the merits. The order appealed
from should be affirmed, the writ lof habeas
corpus sustained, and the relator fLewisohnJ
discharged.
Justice Gray in his opinion says:
Whit hesitation | have in agreeing In an
aTrmhnCe IL because the effect OF our de-
,lsloh Will be to change rule OF construc-
ron which was early laid down in this State
IN III" case OF the People VS. Hackley and
70 override the authority OF that case. |
md no decision in this court which has gone
tnnt far. But the rulp of that On beiup one