The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1905-06-06
STRIKERS WIN
COURT DECISION
Judge Grosscup Upholds
Leaders in Their Refusal
to Reply to Questions
WITHIN THEIR RIGHTS
Sentencing of Them to Jail
for Contempt Styled ok
traordinary Proceedings

CHICAGO, June "a notable decision
affecting conspiracy proce edings was
made to-day by Judge Peter s. Grosscup
In the United States District Court. He
declared that the falling of two strike
leaders, Bernard Mulligan and John H.
Donahue, for alleged contempt of court in
refusing to answer questions possibly in
eliminating them was extraordinary
proceedings" Judge Grosscup's opinion,
on account of its salient character and
widespread applicability. attracted much
attention.
Mulligan and Donahue, who had been
held in contempt of court by Judge Kohl
saat for refusing to answer questions be-
fore Master in Chancery Sherman, which
the defendants were especially ordered by
Judge kohlsaat to answer, were released
under $500 bonds by Judge Grosscup and
a supersedeas was issued, staying the
kohiaat order following application for a
writ of error by the respondents
In giving the opinion Judge Grosscup
upholding the right of silence, said:
The constitution of the United States provides
that no one shall be compelled to be witness
against himself. The right OF silence tnIs
given among the most cherished guar an
tees of fundamental law. 1t is one OF the
distinctive guarantees of Anglo-Saxon cIVll
liberty. 1t takes equal rank with those con-
StitutiOnal prohibitions IN FAVOR OF lne IN
dividual as against the state that forbid the
impairment of contract or the taking of prop
erty without due process OF law and consitu-
tional guarantee cannot be forfeited In the
promotion of law and order it must not be
overlooked, Tor the promotion OF law ana order
must net itself be lawless.
The inquiry before the court, when this con-
situtional right is invoked, always Is: Is the
protection asked for simply as mask TO
cover the witness disnclination to answer the
question or is the protection asked for in good
faith to shield the witness against being made
a-witness against himself in what may become
a criminal prosecution? Is the danger OF in
elimination substantial. or IS 1t merely san-
ciful?
The TESTIMONY taken tends to show. among
other things that permits were issued by the
unions to drivers in the case of goods that
were to be allowed delivery. presumably in
order that goods not under the protection Of
such permits should not be allowed delivery.
Now, while the issuance OF permit or
persons connection with its issuance. or use.
or his connection with instruction not TO
pick up or deliver the goods OF a certain
house, may not standing alone, be criminal.
the fact that permits were issued and that
certain instructions were given and accepted
may become potent links in the chain of evil
dence that leads up to the crime of conspir-
acy: and in the proof of such links. were
Mulligan and Donahue to be indicted and put
on trial for conspiracy, the burden would De
upon the prosecution, without any help by
compulsory confession of the defendants, 10
establish the existence OF such links So that.
good faith in the invoking of this constitu-
tional guarantee being assumed IL is at least
legally discernible that Mulligan and Donahue
might properly refuse to give to the Government
proof OF the facts inquired into; for the right
of silence is not confined to the last step in
the proof Of crime; il is not a mere partial
right. but complies right. and accrues the
moment right of the defendant is struck
that IL followed up. would eventually un-
cover the witness connection with the crime.
cannot help but feel that, in all probabii-
ity Donahue and Mulligan in good faith stood
In fear that the testimonies taken before the
master might be used against them before the
Grand Jury and might lead link in the
chain to their incrimination- Under such
preliminary showing. the case should be fully
investigated by the Court of Appeals before
the sentence is carried to execution
The Judgment of the Circuit Court in this
case will be stayed upon Mulligan and Dona-
hue giving bail in the sum of $500 each