People v. Reichman — 26 N.Y. Crim. 313

Majority

p. 313

SUPREME COURT—SPECIAL TERM—NEW YORK*

July, 1911.

THE PEOPLE v. REICHMAN.

(73 Misc. 212.)

Headnote

Constitutional law—Eights guabanteed to persons accused of crime-. —Compelling accused to give evidence against himself.

Where one indicted for a crime is subpoenaed before the grand jury and interrogated as to a transaction involved in the charge upon, which the indictment against him was based, and, upon his refusal to answer on the ground it might tend to incriminate him, is taken before a justice of the Supreme Court, who directs him to answer the-questions, which he accordingly does, his subsequent conviction is of such doubtful validity that, when his rights have been preserved by proper motions, objections and exceptions, a certificate of reasonable-doubt should be granted.

Application for a certificate of reasonable doubt.

Chas. S. Whitman, District Attorney, Wm. H. Ivins, Jas. A. Delahanty and John Kirkland Clark, for People.

Stephen C. Baldwin, John B. Stanchfield, W. Q. Keir, for defendant.

This is an application for a certificate of reasonable doubt, pending an appeal.

It appears that, after Eeichman was indicted, he was subpoenaed to appear before the grand jury as a witness in People t. Hyde and interrogated as to one of the transactions that had entered into the charge upon which he had been indicted. Eeichman declined to answer any of the questions other than the formal ones, on the ground that the answers might tend to incriminate him. He was thereupon taken before a' justice of this:.

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court; the questions were read; Reichman claimed the sam privilege, hut he was directed to answer. He thereupon returned to the grand jury room and answered the questions.

The district attorney does not justify, as indeed it is hard to ¡see how he could, this startling innovation in criminal practice, but claims that Reichman should have persisted in his objection, been committed for contempt of court, and then applied for a writ of habeas corpus, and having answered, even under compulsion, that he lost his privilege that when the evidence is secured the court is not interested in the manner by which it is obtained. I do not so view the question. There are certain constitutional protections thrown around those accused of crime that prosecuting officers are constantly striving to circumvent and destroy. If the practice adopted in this case is to be sanctioned, the district attorney practically secures the right to an examination of the defendant before trial, without even the protection afforded by the presence of counsel, when indicted for a crime for which, or some element of which, a criminal charge could be made against a third person. The defendant, by vanious motions, objections and exceptions, has reserved the right to present this matter to the appellate court, and I feel that he :should have the right to do so.

I have not considered the various other specifications of error assigned by the defendant, for the reason that I am of opinion that this violation of the defendant’s constitutional rights is of sufficient importance to require a submission of the appeal to the Appellate Division; and, as the sentence was for a term of four and one-half months, and the Appellate Division is now in recess and will not reassemble until the term of imprisonment will practically have expired, the defendant would be deprived of a. Rearing on the appeal if this certificate were not given.

Motion granted.