New-York tribune., 1906-12-01
RULING IN JOHN DOE CASE
Court of appeals Holds Many of
JerOme's Subpanas Worthless.

The Court of Appeals has handed down de-
cision which, while 1t confirms the denial of an
application for n writ OF prohibition by Never
w. Livingston, head bookkeeper for Klaw &. FIR
LANCER who seeking to escape punishment
for refusing to testify in q John Doe" pro-
ceeding holds that many subpoenas issued In
such proceeding worthless and do not call
for obedience. While the court decides that the
circumstances were not such as TO justify a
writ Of prohibition. it points out that writ of
habeas corpus would be sufficient to protect Mr.
Livingston in refusing to obey the subpoena
Following a suit of David Belasco against
Klaw & Erlanger a year ago, District Attor
ney Jerome begun a John Doe" inquiry directed
against the theatrical managers and Mr. I.iv-
ingston served with subpoena issued by
Justice Wyatt. of the Court of Special Sessions.
Mr.. Livingston was directed to appear as wit
ness in the inquiry with all the books and rec
ords of Klaw & Erlanger He ignored the sub
poena, and the application for the writ of pro-
hibition was applied for by Edward Lauterbach.
Of the firms counsel, when attempt was
made to punish Mr.. Livingston for contempt.
The application was denied and the appeal fol-
lowed.
The Court of Appeals says of the subpoena
which Mr.. Livingston refused TO obey:
No business secret would remain unknown If
such command were obeyed. The subpoena was
prudent magistrate should proceed with the utmost
caution when he has reason 10 suspect that Grim
inal proceeding was begun before him. not to vim
purpose and should Withhold process until salts
fed that the complainant is acting in good faith IN
behalf of the people. and not to aid personal ob-
We have already pointed out the nature Of the
proof required In information. Suspicion is not
enough, and information and belief not enough,
sS an a5s tie Hs'ea bee
nation should fairly warrant the Inference by the
magistrate that in good faith and on reasonable
grounds the complainant believes that a definite
e bI mas ia @ Dee ny non wbcb 70
issue subpoenas and take depositons; whereas
chance that some crime may be discovered; 49,
CONES the sole O hass I 6f such proceedng The
highest of the law is personal liberty, and con-
we think that the respondent was without jurts-
diction to entertain the proceedings or TO require
was not laid before MIN
had acquired jurisdicton to Investigate the sub
a was spe fe M pPpse o 6
law and that It did not name or describe any per-
I The magistrate recited in the subpoena that he
had reason to suppose an offence has been com
Whether to IT has BEEN conmmitted and then com
purpose" thus it appeared that sufficent proof
had not been made tending to show that an Of
or mot It did not state What the crime
was. who the accused was, but indicated an in
tention to rove around and find out. The recital
BY a declaration of his purpose to investigate to
whether the supposition was correct, indicates
a voyage of discovery that the law does not
tolerate
We are OF the opinion that the subpoena issued
by the magistrate void upon its face. and that
1t called obedience to its commands the part
Of no one; We are also Of the opinion. however.
that while there is strong reason for believing
that in this criminal process has been used
for improper purposes still that prohibition is not
the proper remedy.
Mr.. Jerome took copy Of the decision to his
summer home at Lakevie yesterday. saying he
might make some statement on the subject on
Monday. Mr.. Lauterbach said that while the
decision would not prevent John Doe in
Quiries, 1t showed that the inquiry in the Of
Mr. Livingston improper.