29 N.Y.S. 329 | N.Y. Sup. Ct. | 1894
Upon the twenty-fourth day of March, inst., I granted two writs, one of habeas corpus, the other of certiorari, to inquire into the cause of the detention of the relator by the defendant. The writs were returnable before me at Watkins upon the twenty-sixth day of March. Upon the said day the parties appeared, and were heard through counsel in reference thereto. In determining this case it is important to consider several questions:
First. To what rights is the relator entitled under the writ of certiorari over and above his rights under the writ of habeas corpus? Is. the writ of certiorari more searching? Does it bring before the court for review any further papers or evidence or give the court any further right of determination than does the writ of habeas corpus ?
There has been in the books considerable confusion upon this question, but a careful study of the scheme of the Code renders plain, I think, the intention of the lawmakers.
Second. What rights has the relator upon his examination before the grand jury ? In Wharton on the Law of Evidence, section 533, it is said: “A witness, such is one of the most cherished sanctions of our common law, will not be compelled to answer any question the answer to which would be a link in the chain of evidence by which he could be convicted of a criminal offense.” The grand jury had under investigation the cause of a supposed crime, which resulted in the death of a woman in the city of Ithaca, caused by the generation of a deadly gas in jugs which had been provided for that purpose.
■ It seems that this gas was generated and conducted to a room in which was being held a lawful meeting of the freshman class of the university, for the purpose of disturbing the said meeting.. Such act would seem to ¿onstitute, under section 448 of the Penal Code, a misdemeanor. Under section 189 of the Penal Code the killing of a human being while engaged in such act would seem to constitute the crime of manslaughter in the first degree. These sections are referred to, not for the purpose of pointing out what crime was under investigation, but for the purpose of showing that some crime was charged. Under the circumstances surrounding the case the probabilities are that that crime was committed by some of the students of the university. This relator, then, a student of the uni
The district attorney, upon the argument, admitted that if these questions alone were asked the relator would have the right to assert his privilege, but he would take from the witness his privilege because of the answer to three other questions, as follows: “ Do you know what the contents of
But the minor premise is clearly at fault. Suppose Taylor himself had pm-chased those jugs for the purpose of causing some disturbance of this lawful meeting, he might well then be guilty as a principal in this crime without ri ik?r knowing the contents of the jug or the nature of the act that was
Tim'd. Does the commitment, then, charge any criminal contempt 1 By this commitment I am bound as to facts recited therein. In People v. Hackley, 24 N. Y. 78, Judge Denio says: “ The question whether the alleged offender really committed the act charged will be conclusively determined by the order or judgment of the court.” The learned judge was then speaking of such review as was permitted upon a writ of habeas corpus. The commitment recites the questions asked of the relator, and then further recites: “ And the said Frederick L. Taylor then and there, instead of answering the said interrogatories so put to him as aforesaid, stated and answered each of said interrogatories as follows, to wit, ‘ I throw myself upon my privilege.’ And the court having then and there decided that each of said interrogatories was a legal and proper one, and that 'the reasons given by said Frederick L. Taylor for not answering the saxne are invalid and insufficient * * * doth hereby adjudge the said Frederick L. Taylor guilty of a criminal contempt of coxxrt.”
It is not enough for the xvitness to throw himself upon his privilege. The law gives to him great license in allowing him to refuse to answer xvhere he asserts under oath that the answer would tend to criminate him. If the court can see that any answer which he should give can reasonably prodxxce such an effect it is bound to accept his oath without explanation as to how it can tend to criminate him. It is a necessary safeguard, therefore, against the abuse of this privilege that the witness should make oath that in his opinion the effect of his answer would have a tendency to criminate him. He knows, and he alone, whether such would probably be the effect of his
The prisoner is, therefore, remanded to the sheriff of Tompkins county under the commitment upon which he is now detained.
Ordered accordingly.