People ex rel. Lewisohn v. O'Brien

Citation176 N.Y. 253,68 N.E. 353
PartiesPEOPLE ex rel. LEWISOHN v. O'BRIEN, Sheriff, et al. SAME v. WYATT, Justice of Court of Special Sessions.
Decision Date20 October 1903
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Application by the people, on the relation of Jesse Lewisohn, for a writ of habeas corpus to William J. O'Brien, sheriff of New York county, and others, and of certiorari to William E. Wyatt, justice of the Court of Special Sessions of the state of New York. From an order of the Appellate Division (80 N. Y. Supp. 816), reversing an order of the Special Term (80 N. Y. Supp. 198) denying relator a discharge from custody, respondents appeal. Affirmed.

CONSTITUTIONAL LAW-PRIVILEGE OF WITNESS-CRIMINATING EVIDENCE.

1. Under Const. art. 1, s 6, providing that no person can be compelled in any criminal case to be a witness against himself, a witness, examined before a magistrate on an information charging another with keeping a gambling house, cannot be compelled to give evidence tending to incriminate himself, notwithstanding Pen. Code, s 342 (contained in chapter 9, relating to gaming), provides that no person shall be excused from giving testimony, on any investigation or proceeding for a violation of the chapter, because such testimony would tend to convict him of a crime, but that such testimony cannot be received against him on any criminal investigation or proceeding, as a witness cannot be compelled to disclose circumstances which would aid his prosecution, and any statutory protection short of absolute immunity from prosecution is insufficient.

William Travers Jerome, Dist. Atty. (Howard S. Gans, of counsel), for appellants.

Alfred Lauterbach and P. J. Rooney, for respondent.

BARTLETT, J.

In December, 1902, an information was presented to the Court of Special Sessions of the First division of the city of New York, charging in due form that for the period beginning the 1st day of January, 1902, and ending the 1st day of December, 1902, one Richard A. Canfield was conducting a gambling house at No. 5 East Forty-Fourth street, in the city of New York, and praying that subpoenas might issue in order that the matter be fully inquired into upon oaths of persons attending in obedience to such subpoenas. Thereafter, at the request of the district attorney, the magistrate issued a subpoena addressed to the relator herein, requiring him to attend before him and to answer such questions as might be put to him on the information against Canfield. The relator appeared and was duly affirmed, pursuant to law, and, after stating upon examination that he had known the defendant, Richard A. Canfield, four or five years, and that he had not been in the premises No. 5 East Forty-Fourth street prior to December, 1899, was asked the following questions: ‘Have you ever been in there in your life? Have you ever been in the premises No. 5 East Forty-Fourth street, in the city and county of New York?’ These questions the relator refused to answer, on the ground, among others, that they might tend to criminate him. The district attorney thereupon promised the witness immunity, and called his attention to section 342 of the Penal Code as affording him complete protection. The court thereupondirected the witness to answer, and the latter said, ‘I respectfully decline, judge.’ Thereupon a complaint was made by a deputy assistant district attorney, duly setting forth the facts, and thereon and on certain exhibits annexed the magistrate issued a warrant for the arrest of the relator, charging him with a criminal contempt of court. The warrant was thereupon delivered to the appellant Gannon, a peace officer, who arrested the relator. After various proceedings unnecessary at this time to consider in detail, Gannon, the peace officer, was served with a writ of habeas corpus, commanding him to bring the relator before Justice Scott, of the Supreme Court, and a writ of certiorari was also obtained directed to Justice Wyatt, of the Special Sessions. Upon the hearing of the issues an order was made dismissing the writs and remanding the relator to the custody from which he was taken. Upon appeal the Appellate Division reversed this order with a divided court.

The relator seeks to justify his refusal to answer under article 1, § 6, of the Constitution of this state, which provides that no person ‘shall be compelled, in any criminal case, to be a witness against himself.’ It is insisted on behalf of the people that the witness is fully protected by section 342 of the Penal Code, and should have been compelled to answer. The section reads as follows: ‘No person shall be excused from giving testimony upon any investigation or proceeding for a violation of this chapter, upon the ground that such testimony would tend to convict him of a crime; but such testimony cannot be received against him upon any criminal investigation or proceeding.’ The relator contends that this section does not afford him full protection, and is not as broad in its provisions as the Constitution. Const. art. 1, § 6. This constitutional provision is precisely the same in phraseology as the fifth amendment of the Constitution of the United States. The same language is also found, in substance, in many of the state Constitutions.

Early in the history of this court, in People ex rel. Hackley v. Kelly, 24 N. Y. 74, this provision of the state Constitution was construed; the court holding that it did not protect a witness, in a criminal prosecution against another person, from being compelled to give testimony which implicates him in a crime, when he has been protected by statute against the use of such testimony on his own trial. Judge Denio said (pages 82, 83): ‘It is perfectly well settled that, where there is no legal provision to protect the witness against the reading of the testimony on his own trial, he cannot be compelled to answer. People v. Mather, 4 Wend. 229 , and cases there referred to. This course of adjudication does not result from any judicial construction of the Constitution, but is a branch of the common-law doctrine which excuses a person from giving testimony which will tend to disgrace him, to charge him with a penalty or forfeiture, or to convict him of a crime. It is, of course, competent for the Legislature to change any doctrine of the common law; but, I think, they could not compel a witness to testify on the trial of another person to facts which would prove himself guilty of a crime without indemnifying him against the consequences, because, I think, as has been mentioned, that by legal construction the Constitution would be found to forbid it. But it is proposed by the appellant's counsel to push the construction of the Constitution a step further. A person is not only compellable to be a witness against himself in his own cause, or to testify to the truth in a prosecution against another person, where the evidence given, if used as his admission, might tend to convict himself if he should be afterwards prosecuted, but he is still privileged from answering, though he is secured from his answers being repeated to his prejudice on another trial against himself. 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.’

We thus have a clear interpretation of the constitutional provision which reads that ‘no person can be compelled, in any criminal case, to be a witness against himself,’ as follows: That the words ‘any criminal case’ mean a criminal case against the witness; that the prohibition, ‘no person can be compelled * * * to be a witness against himself,’ is fully satisfied when the evidence of a witness taken on the trial of another person is held to be inadmissible on his own criminal prosecution; and the fact that his evidence on the trial of another person may afford the public prosecutor some facilities for fastening the guilt upon himself does not permit him to be silent. It is clear, if this case is to be regarded as containing a correct exposition of the constitutional provision under review, that the relator should have been required to answer the questions propounded to him, as his protection, alike under the Constitution and the statute, is confined to the single provision that his evidence cannot be received against him in any criminal investigation or proceeding. The opinion in People ex rel. Hackley v. Kelly, supra, was written by a distinguished jurist, whose learning and ability have placed him among the great judges of this state who now rest from their labors. It is with no little hesitation that this court feels constrained to adopt a less technical and more liberal interpretation of this brief provision of the Constitution. As we have already pointed out, the fifth amendment to the Constitution of the United States contains the precise language of our state Constitution now under review. In Brown v. Walker, 161 U. S. 591, 606, 16 Sup. Ct. 644, 650, 40 L. Ed. 819, the Supreme Court of the United States said: ‘It is true that the fifth amendment to the Constitution of the United States does not operate upon a witness testifying in the state courts, as the first eight amendments to the Constitution of the United States...

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39 cases
  • Feldman v. United States
    • United States
    • U.S. Supreme Court
    • May 29, 1944
    ...prior to March 14, 1938, did not grant an immunity coextensive with the privilege available under New York law. People ex rel. Lewisohn v. O'Brien, 176 N.Y. 253, 68 N.E. 353. As to testimony under the later New York statute, the Government suggests that it either was not incriminating or wa......
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    ...(see, e.g., People ex rel. Taylor v Forbes, 143 NY 219, 228-231 [38 N.E. 303]; People v Priori, 164 NY 459, 466 ; People ex rel. Lewisohn v O'Brien, 176 NY 253, 264 ), a metaphor still in use in cases subsequent to Doyle (see, e.g., People ex rel. Coyle v Truesdell, 259 App Div 282, 286 ; P......
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    ...lead thereafter. Counselman v. Hitchcock, 142 U.S. 547, 584-85, 12 S.Ct. 195, 206, 35 L.Ed. 1110 (1892); see People ex rel. Lewisohn v. O'Brien, 176 N.Y. 253, 68 N.E. 353 (1903) (adopting the reasoning in Counselman and overruling People ex rel. Hackley v. Kelly, supra ); but see Attorney G......
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