New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1912-09-15

! further investigation tho result OF what
ne may learn at Hot Springs. II takes at
least forty-four hours 10 make the trip
from New York to Hot Springs.
Might Have Waited for Golf.
II was the stipulations. the amendpents
20 Justice Bischot's order. which made
the Fastening OF Beckers trial possible
and II a demand was 10 be made for a
| commission anyway, the District Attor-
ney is we'll satisfied that IL turned out az
IL did. 1t was pointed out yesterday that
II Mr. Mcintyre had not made his motion
for the appointment OF a commission be-
fore Justice Bischoff he might have walt
ed until the trial actually began TO make
II before Justice Con. There would then
have been an argument before the jury.
which might have tended 10 prejudice It's
members toward one side or the other.
In any event, had the motion been made
az that time II is more than likely that
concessions would have been made as to
the alleged statements made by wit
nesses at Hot Springs, and that would
have been far less desirable than hav-
ing their own words.
BY reason OF the changes in Justice
Bschoff's order which were made At the
request Of MIR. Moss, the interrogatories.
or schedule OF questions which are 10 be
propounded to the witnesses at Hot
Springs, are largely matter OF form
Ordinarily the interrogatories. having
been served and approved, are absolutely
binding. No question can be asked which
is not included in either the interroga-
tories served by the defendant or the
cross-interrogatories served by the Dis
trlce Attorney. BY stipulation, however,
in this case after the questions In the In
terrogatories have been propounded fur
Their questions may be asked.
AS the commission has only "A mechani-
cal function To perform. similar TO that
OF a photograph bearing blank record.
no question can be stayed by an obJcc-
ton. although the objection will be noted
along with the question and its answer.
These objections will be passed on by
Justice Goff when the testimony is read
10 the jury at Becker's trial There ap-
pears to be nothing then. which can de-
Law the work OF the commission when
once the witnesses are before il.
An attorney OF Hot Springs. whose name
place. has been selected by Justice Bisch-
of as the commissioner. lie viii publicly
administer the oath TO the witnesses and
cause their examination 10 be reduced To
writing The answer Of each witness
will be read 10 him after II is transcribed.
and II he wishes TO amend II II VIII be
so changed If any witness refuses to
answer a question his reason for so re-
fuslng will be noted. along with the re-
fusual Any papers or documents pro-
duced and proved by the witnesses VIII be
added 10 his deposition, signed by him
and certified by the commissioner
Technical Question Raised.
While eminently satisfied with the re-
suit I'm this particular case, some Of Mr.
Whitman's assistants pointed out yester-
day that II might be considered that the
order which Justice Newberger made re-
turnable before Justice Bischoh might
fully as well have been made returnable
before Justice GoT himself. The APP
pellate Division, II was said, ruled In the
HYDE case that court might be In ses-
sion even though an adjournment had
been taken at the time motion was
made. Arguing along these lines, 1t was
said that Justice COTS extraordinary
term was undoubtedly In session when Alr.
MCINTYRE made his motion before Justice
BlschofY. even though Justice Gon him
self happened TO be I'm Mllbrook at the
time
Those who held those Views said that
II such action were permissible II was
perfectly possible for any attorney whose
client was actually on trial to serve sud
denly on the presiding judge stay grant
ed by a justice Of the Supreme Court
which would stop the trial until com
mission had taken the testimony OF wit
nesses who were out Of the jurisdiction.
The appointment OF commission In
criminal case Is not unusual though IL
Is ordinarily done by the judge before
whom the case Is 10 be tried. IL Is
far more common in civil cases. The
code of Criminal Procedure states
when a material witness for the defen-
.dart resides out of the state the defend
an, NAV apply for an order that the wit
ness be examined on commission
The District Attorney Is not empowered
N ask for a commission. the law stating
that it is the right OF the accused to be
confronted" with the witnesses against
him. When a commission has been issued, |
however at the request OF the defendant
set of questions, known as the cross |
interrogatories, is prepared by the Dis
,rIct Attorney. BY the stlpulations made !
regarding this particular commission the
District Attorney and the defendant are
not limited to their schedules Of questions. |
and likewise the District Attorney is per-
,ni,,ed 10 call such witnesses before the |
commissioner az he may desire.
A restriction upon the application for
the commission is made by the Code OF
Criminal Procedure. as follows: Tho APP |
nI,catIon. II made during term, must be
made 10 the court