Lewisohn v. Wyatt

The relator, by writs of certiorari and habeas corpus, seeks to review the action of the respondent Wyatt, a justice of the special sessions, in issuing a warrant for his arrest upon an information charging him with a misdemeanor, in that he unlawfully refused to answer a question put to him upon a criminal proceeding pending before said justice. The questions raised upon the return to the writs have been elaborately argued. It was stated upon the argument, both in behalf of the district attorney and by counsel for the relator, that it was deemed that the questions thus argued were of such importance that it was desirable that the opinion of the appellate courts should be obtained thereon as speedily as possible. I shall not, therefore, attempt to discuss any of the numerous questions at any considerable length, but shall content myself with stating as briefly as possible the conclusions at which I have arrived.

The proceeding in the course of which the relator refused to answer was an investigation conducted by the respondent Wyatt, sitting as a magistrate, upon a sworn information presented to him by the district attorney of this county. In that information the district attorney alleged, upon information and belief, that in the city of New York, in the county of New York, on the ist day of January, 1901, and thereafter continuously until the ist day of December, 1902, one Richard A. Canfield did, at the city of New York, in the premises known as No. 5 East Forty-Fourth street, in the borough of Manhattan,

It is further objected that the magistrate was without authority to exclude the public from his inquiry into the truth of the allegations contained in the information. This precise question was raised and decided adversely to the relator’s present contention in People v. Cornell, 6 Misc. Rep. 568 , 27 N. Y. Supp. 859 . I see no reason to question either the authority or the reasoning of this decision. The relator argues with much ingenuity that a refusal to testify before a committing magistrate is not punishable by indictment under section 143, Pen. Code. That section provides that a person who commits a contempt of court of any one of several kinds is guilty of a misdemeanor. Among the acts specified by this section as contempts is “contumacious and unlawful refusal to be sworn as a witness, or after being sworn, to answer any legal and proper interrogatory.” Subdivision 6, section 148 of the Code of Criminal Procedure, requires a magistrate, before whom an information is laid, to examine the witnesses produced by the prosecutor, and section 608 of the same Code authorizes him to issue subpoenas for such witnesses. If, then, the information laid before the respondent Wyatt was sufficient to invest him with jurisdiction to inquire whether the crime alleged had really been committed, he had jurisdiction to issue a subpoena for the relator, and to require him to be sworn as a witness, and to answer such proper questions as were put to him; and for a refusal so to. answer the relator was guilty of a misdemeanor. It does not matter whether or not, under section 609 of the Code of Criminal Procedure, he might also be proceeded against under section 856 of the Code of Civil Procedure, for it is expressly declared by section 680 of the Penal Code that a criminal act is none the less punishable as a crime because it is also declared to be punishable as a contempt of court. It remains to be considered whether the relator was justified in declining to answer the question that was put to him. As has been said, the information, in effect, charges one Canfield with keeping a gambling house at No. 5 East Forty-Fourth street. The relator, having testified that he knew Canfield, was asked,

“It is, no doubt, true that a precise account of the circumstances of a given crime would afford a prosecutor some facilities for fastening the guilt upon the actual offender, though he were not permitted to prove such account upon the trial. The possession of the circumstances might point out to him sources of evidence which he would otherwise be ignorant of, and in this way the witness might be prejudiced. But neither the law nor the constitution is so sedulous to screen the guilty as the argument supposes. If a man cannot give evidence upon the trial of another person without disclosing circumstances which will make his own guilt apparent, or at least capable of proof, though his account of the transactions should never be used as evidence, it is the misfortune of his condition, and not any want of humanity in the law.”

This case was cited and accepted as a true exposition of the law as late as 1887, in People v. Sharp, 107 N. Y. 427 , 14 N.

It was conceded upon the argument, and cannot be doubted, that the rule in the federal courts is much more liberal to a witness. The phraseology of the federal constitution js the same as that of the constitution of this state. Respecting that provision, the supreme court of the United States has held that no statute defeats the privilege to a witness of refusing to testify, unless it affords absolute immunity against future prosecution for the offense to which the question relates. Counselman v. Hitchcock, 142 U. S. 547 , 12 Sup. Ct. 195 , 35 L. Ed. 1110 . The reasoning by which the court arrives at this conclusion is very persuasive, but as it is in direct conflict with the law of this state, as declared by the court of appeals, it is not controlling upon this court, unless the relator is entitled to take refuge behind the federal constitution as well as our own. The claim exempting a witness from furnishing evidence against himself is to be found in the fifth amendment to the federal constitution. It is quite well settled that the first 10 amendments to the constitution contained no restrictions upon the powers of the state, but were intended to operate solely on the federal government. Brown v. New Jersey, 175 U. S. 174 , 20 Sup. Ct. 77 , 44 L. Ed, 119 . The relator, therefore, can claim no immunity under the federal constitution, unless the fifth amendment has been so extended in the scope of its operation as to cover the case of a witness called to answer before a state magistrate pursuing an inquiry under a state law. It is contended that such has been the effect of the fourteenth amendment to the federal constitution, which provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.” It is urged by the relator, as it has frequently been urged by others, that this amendment has operated to render the provisions of the first 10 amendments applicable to- the several states, because these latter confer certain privileges and immunities upon citizens of the United States, which by the fourteenth amendment the states are prohibited from abridging. This contention has frequently been made before the supreme court of the United States, but has never met with the assent of that court. On the contrary, the general trend of the decisions of the court is rather to negative any such proposition. Hurtado v. California, 110 U. S. 516 , 4 Sup. Ct. 111 , 28 L. Ed. 232 .; Maxwell v. Dow, 176 U. S. 581 , 20 Sup. Ct. 448 , 494, 44 E. Ed. 597; Missouri v. Lewis, 101 U. S. 31 , 25 L. Ed. 989 ; In re Kemmler, 136 U. S. 448 , 10 Sup. Ct. 930 , 34 L. Ed. 519 .

My conclusions, therefore, are that the information laid before the

Writs dismissed and relator remanded.