New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1904-05-20
LEWIS0HN CASE ARGUED.
His Fight TO Test COnstitutiOnaIity
of Gambling Lac Begins.

Argument o. the return put in by District At
torLey Jerome 20 the writs Of habeas corpus ana
certiorari sued out on behalf Of Jesse Lewisohn by
his attorney. Alfred Lauterbaeh, and also on the
Application for a writ % certiorari TO review the
commitment Of Mr.. Lewiston Cor contempt OF
rourt by Judge Mcmahon before the Appellate d.
vision was heard by Justice Dugro yesterday.
The writ Of certiorari Is to review the action OF
Justice Wyatt sitting as q magistrate in issuing
q warrant for the arrest and commitment Of
Lewisohn last wednesday FOR declining to answer
questions 10 bis presence in the gambling house
Of Richard A. Garfield. LewisOhn also refused 10
answer the same questions before the grand jury.
and Judge NcMshon committed him 10 jail for
fifteen DAYS.
-Ir Lauterbach asks FOR a writ OF certoran In
this case. which VIII come before The Appellate Di
vision FOR determination.
AR Iewisohn was in court when his counsel
began the argument. First, contended Mr.. Lauter-
bach. the offence for which his client was under
arrest charged misdemeanor and the warrant
rould not be upheld. the magistrate was de
functis officer Lewisohn having been examined
previously. But the refusal 10 testify did
stitute misdemeanor. Counsel referred 10 Levi
Eohns examination in 1902. before Justice Wyatt,
which resulted in appeal TO the Court of Ap
peals. when the commitment Of Justice Wyatt
Set aside and the dismissal OF a subsequent in
dictmeht growing out Of the first examination, and
declared that in the case OF misdemeanor a
ond indictment for the same offence did not lie.
The information which the last examination
Of Lewisohn was held specified the same times and
offences that OF 1902.
Justice Wyatt was not holding a court OF record
and. therefore, under the code. had no power 10
commit the witness for contempt. Under the Code
OF Civil Procedure the only punishment for
contempt OF court was Imprisonment for thirty
days and fine OF $3.50
Referring TO the new Jerome Gambling law espe-
cially Designed 10 meet this case which grants
Immunity 10 q witness, Mr.. Iauterbach said that
the decision OF the United States Supreme Court
that the amended Interstate Commerce law. on
which the Jerome law hased. passed by
Congress. constitutional was binding
the Of the States. If the held with the
four minority justices Of the United States Su-
preme Court, he could decide the Gambling
law unconstitutional. Counsel asserted that the
opinion Of this minority right Counsel referred
90 answers his client might give that would de-
grade him.
witnesses were compelled 10 answer questions per-
tinent TO the Issue though their answers would
degrade, while discriminating them. Why. the
correspondent in a divorce case can be compelled
10 testify, although his answers may tend TO de-
grade him"
Mr. Iauterbach argued that the immunity law
was unconstitutional, because person guaranteed
immunity under the law Of this State could be
prosecuted under the federal law If the offence
30 which he testified offence under United
States law.
Mr. Jerome in HIS argument said the was
exactly similar 10 that OF 1902. with the exception
gambler. and the indictment subsequently, dis
missed for want OF prosecution. The procedure in
this case was held be absolutely legal by Justice
Scott. and the question to the constituionallty
of the proceeding was upheld in the Appellate d.
vision.
The only question your honor has TO consider is
whether the law granting a witness immunity Is
constitutional not. and il you hold II Is. then
the defendant undoubtedly guilty OF contempt
of court his refusal answer" said the District
Attorney When this is stripped OF all It's
trimmings. you viii find that there is only one
cuestion before you. and that is whether your
honor. sitting Judge In the nrst instance, Is
ready say that the opinion 81 majority OF the
Judges OF the Supreme Court OF the United states
Is bad law
Justice Dugro reserved decision on the writ Of
habeas corpus and Mr.. Lauterbach then asked that
the writ Of certiorari be granted. Justice Dugro
said lie had bic doubt as TO the correct
ncss Of Judge McMahon's decision.
But unless you grant the writ Of certiorari, l
cannot appeal" pleaded Mr.. Lauterbach.
you" said Justice Dugro. The law would have
provided otherwise had 1t been deemed proper by
the legislature"
Justice Dugro said that the question Of reason
Ftitutional or not clearly raised when four Of
the judgesas against ive-held Il unconstitutional
That argument appears TO me- said Mr.. Jerome.
''ta bc absolutely fallaciOus Whatever doubts
3sted To the constifutlouaty Of the law In the
minds OF the minority settled BY the decision
OF the majority
DO yoa maintain. Mr.. Jerome" demanded Jus
tce DuEro. that the decision OF the United States
Supreme Court is controlling upon me?'
AS a precedent, yes as decision, no." replied
the District Attorney.
Well no precedent f. ever controlling"
justice Dugro's comment.
Justice Dugro said he would accept briefs and
reserve decision.