The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-06-24
HUMMEL'S WRIT SET ASIDE.
APPELLATE JUSTICES QUESTION
TIE INDICTMENTS.
Court, Three to TWO. Refuses to Make Alb.
sO,ute the Writ OF Prohibition Three
Hold That the Accused han Has n
Right 10 Appeal Before HIS Trial

Ey a vote of three to two the justices
of the Appellate Division Of the supreme
Cour, denied yesterday the application
of Abraham Il. Hummei for a permanent
writ of prohibition to restrain Justice Davy
from proceeding with the trial of Hummel
on charges of conspiracy and subornaton
of perjury in connection with the Dodge
Morse divorce scandal.
Three at least of the Justices are, however,
of the opinion that the indictments against
Hummel are invalid because he was CON-
PEELED to testify against himself before
the Grand Jury, and these three Justices
also seem to think that Hummel has Il
right Of appeal from the order denying
his motion to quash the indictments, and
that, Until there is final determination
Of the constitutional question involved
in the motion to quash, the trial should be
stayed.
Justices Mclaughlin, Patterson and
Laughlin are arrayed against Humme
in the matter of the writ OF prohibition.
Justice Ingraham and Presiding Justice
O'Brien favor the granting of the writ.
All the just ices save Justice O'Brien write
separate opinions.
In the matter OF the indictments, not
one OF the Justices is prepared to say that
they are valid. but Justice Laughlin joins
Justice lngraham in holding that Hummel
has right Of appeal before trial from the
motion to quash. Presiding Justice O'Brien.
while writing no opinion, concurs in the
result arrived at by Justice Ingraham. that
the indictment Is faulty and an absolute
writ should issue
Justice Mclaughlin holds that the writ
should Re refused, and that no Intermediate
appeal lies defendants only right icing
an appeal on a final judgment. when all
questions may he raised. In his opinion
he says that even If the indictment he de-
fective no writ can issue, and that the in
dictment certainly did not become nullity
because Hummel testified before the Grand
Jury. In view of the fact that the que''-
ton Of the validity of the indictment may
come before the court later, Justice NC
Iaughlin refrains from discussing 1t.
Justice Patterson says that, while he Is
| not at difference" with Justice !ngraham
in the latter's abstract views respecting ne
protection of person, accused OF Il crime j.;
I in the enjoyment of his constitutional right,
he cannot assent to the proposition THAT
such protection Is to te anorded IN the
present case by a writ Of prom ,tIon.
| There can he no doubt, he saya, of tie
jurisdiction of Justice Davy to pass UPON
Hummel'S mott 10 qua ,h, and incidenta.S
to pass upon an alleged violation OF the
defendants constitutional rights. II mas
always leen the practise, says Justice
Patterson, and section 81 OF the Penal
! Code specifically provides, that az inter-
mediate orders or decisions should : T. re-
viewed on final appeal
Justice Laugh!in holds that trial on the
indictments should not he perpetuaiit'
stayed by a writ even though he agrees
with Justice Ingraham that the indictments
should have been dismissed. He holds,
however. that as tho indictments are r2gu-
lar and valid on their face there j. ample
jurisdiction to proceed with the trial.
AS to Hummei'S right of appeal before
! trial, Justice Iaughhn SAYS that he tninkS
such a right exists. hut the proof of the
violation Of constitutional rights must
rest on extrinsic evidence, not on evidence
contained in the record on which the IN
dictment itself is based.
Justice Ingraham takes up at consid cradle
length the question whether an indictment
will hold against a person who has, been
compelled to testify against himself before
the Grand Jury, and concludes that 1t VIII
not. The mere fact he says, of the person
availing himself. as Hummel did, OF his
privilege and refusing to testify, on the
ground that he might incriminate himself,
has the substance Of testimony before
Grand Jury. as it amounts practlca lily
to a confession Of guilt, the very thing
which the constitutional provision was
designed to meet
Reasoning from this, Justice 1ngraha,m
holds that the indictment is not only Invalid
and irregular, but not an Indictment at
all; a nullity, in fact, as he expresses IT.
To try a person upon such nudity, ne
argues violates the law. since a person
may not be tried except upon an indict-
ment duly found,
Hummels motion to quash having famed.
Justice 1ngraham reasons that there re-
mains but one course open to him to stay
his trial. namely, a writ Of prohibition
If it Is NOT granted, he will be tried on an
indictment found in violation of the Con-
stitution, and thus not an indictment on
which he could be held to answer 10
prevent such disregard Of Hummels
rights, Justice Ingraham says, the absolute
writ should be granted,
mel, said yesterday:
Il consider that we have won a suhstan-
tial victory. As you will see, two OF the
five Judges decide that the writ shonld
issue, while -four denornce the indictments
and agree that they should never nave
been drawn. in the history Of Vow lori:
there is not n case where indictments hav We
been pronounced unconstitutional by
vote Of four to one of the Appellate Divi-
sion in which the defendant has been
brought to trial.
Mr. Jerome refused to make any com
ment on the decision. Hummel can ap-
peal AS soon rs the order il entered Mr.
Jerome will have Hummel's cas-" put on
tho calendar to fix a date for trial. II j.
not likely however, that Hummcl will be
tried this summer. Assistant District
Attorney Rand, who will prosecute him,
is to be abroad during July and August.