New-York tribune., 1912-03-15
VACUUM CONCERN FAILS S'BARS SCH|FF AND CANS
Grand Jury Appearance Would
Mean Immunity, Says Grain.
! HEARING NOW NEARLY OVER
LAWYERS Seek Modification Of
Brandt Writ to Include
Question of Bail.

Judge Grain advised the grand jury in
vestigatng the conspiracy charges in the
Brandt case Yesterday that they could
not permit Mortimer l.. Schlff and Howard
S Cans to testify without granting them
immunity from prosecution. The judge
told the jury to consider carefully whether
they wanted To hear Schlff and Cans any
way and they promptly decided not to
call them.
II is now expected that the work Of the
grand jury in the case will he wound up
next week. a subpoena was issued for
Virginia Tyler Hudson yesterday and sine
will have an opportunity on Tuesday to
explain her statements Of having FUR
nished meals to Brandt at the expense OF
The New York American" while Brandt
was In the Tomhs in March, l9'1. Chester
Vayden, auditor of THE American took
TO the District Attorneys office yesterday
The Americans" expense bills and as
signment sheets for March. 1891. They
showed that Virginia Tyler Hudson was
assigned to the Schiff case on March II,
l3. H. rs and la The assignments on
March rs and 70 were due 10 reports that
Mortimer L. Schin was providing luxures
entire assignment was 81 80, consisting Of
70 cents for sending two messengers to the
Schiff home and 81 for q notary public
and for having a man in tne Tombs after
hours
The grand jury heard yesterday John \.
Wadron clerk in the executive chamber
at Albany. and Mr Atnerton, who was
secretary TO the special commission that
investigated the prisons in 1911 Both tes-
tified as to the records that have been
presented as evidence before the grand
jury. The first work Of the day was hear
ing Judge Grains opinion on whether
Schih and Cans would receive immunity
II they were allowed TO testify. and after
hearing Waldron and Atherton adjourn
ment was taken until Tuesday.
Makes Crane Jury Responsible.
In his opinion Judge Grain made IT plain
tha, he had no purpose Of assuming the
responsibility Of saying whether Mortimer
l.. Schin and Howard s. Cans should tes-
tify before the grand jury. What Is said
10 YOU is not a charge by the court" he
said 1T is advice given 10 you by
Judge of the court responsive TO your re-
quest for advice. Grand jurors are under
legal obligation to follow and apply the
law stated in charge. Grand Jurors arc
under no legal obligation TO either follow
or apply advice given to them at their
request by a judge Of the court
COMING directly TO Section 5H Of the
Penal Law, Judge Grain said:
The statute in question requires all per-
sons To testify and prohibits the assertion
OF the constitutional privilege of silence
and operates per Sc as compuislOh. lhe
situation Of such a person II that OF one
r, luircd TO speak. and this independent
Of the circumstance that hlS desires run
parallel with the requirement OF the stat,
ute, because. regardless OF what ms a,. dCtua.
volition may be- he is bereft OF the power
Of choice lie * uTecludei from pleading
his constitutional privilege Of silence. How
ever voluntary ne may consider his acton
to be, II Is not voluntary within the mean
ing Of the law where some legal power
takes away the right of choice and directs
or controls the action.
This statute IL constitutional let
could not tc unless full immunity from
prosecution were granted concurrently with
the compulsion. N therefore makes the
nc Crnent OF compLlsiou the moment OF I'M,
munity When compelled and as compelled
the person compelled becomes immune.
Immunity springs into being because OF
;Ee cOmpulsion Its birth IS coeval win
the compelling power. and this rs inc IAN
guage and intendmcnt OF the statute.
Judge Grain then gave resume OF the
arguments In favor OF hearing the tesu-
mony Of SchiT and Cans and the theory
on which IL was contended that they would
not receive immunity and said:
While II is wholly impossible To enumer-
ate should you determine 10 permit the
persons named TO attend and testify, me
things to be- avoided III cohhecuoh WIN
their attendance and examination. YOU are
advised that no subpoena should be Issued
recurring their attendance or the pIoduc-
tion by them OF any document or docu-
ments You are advised that, as Al
present Informed. In the opinion OF the
Judge advising you negative answer Is
required TO your question-namely. one 10
the effect that II Is not legally possible
for the persons referred 10 TO appear 2nh
testify before yoL III your pending lnVesu-
CATION without such persons thereby De
coming by virtue OF the provisions OF sec
tion 5si OF tn" penal Jaw. immune from
prosecution and non-punishable Tor the