
    Supreme Court—Special Term—New York.
    December, 1902.
    THE PEOPLE EX REL. LEWISOHN v. WILLIAM E. WYATT. THE PEOPLE EX REL. LEWISOHN v. WILLIAM J. O’BRIEN AS SHERIFF.
    (39 Misc. 456.)
    1. Gambling—Information—Code Crim. Prog., Sec. 148.
    On information by the district attorney of New York county, upon information and belief, that in the city and county of New York on January 1, 1901, and thereafter continuously until December 1, 1901, one C did at said city, in premises described, use certain rooms and allow them to be used for the purpose of gambling is sufficient to invest the magistrate with jurisdiction to proceed with an investigation into the truth of the allegations, issue subpoena for witnesses and require them to answer, and to exclude the public from the inquiry,
    2. Same-—Trial—Witness—Penal Code, Secs. 143, 342—New York
    Constitution, Art. 1, Sec. 6.
    A witness who refuses to answer a question whether he had ever been in the premises said to have been occupied as a gambling house is guilty of a misdemeanor under Penal Code, section 143, as the indemnity afforded him by section 342 of the Penal Code meets and overcomes the protection of the Constitution (art. 1, see 6) that no person shall be a witness against himself.
    3. Same—U. S. Constitution—Fifth Amendment.
    The Fifth Amendment to the Federal Constitution has not been./ extended by the Fourteenth Amendment to cover the case of a witness called to answer before a State magistrate pursuing an inquiry under a State law.
    Proceedings by writs- of certiorari and habeas corpus to review the action of respondent Wyatt, a justice of the Special Sessions, in issuing a warrant for the arrest of relator upon information charging him with a misdemeanor.
    Hoadly, Lauterbach & Johnson (Alfred Lauterbach, of counsel), for relator.
    William Travers1 Jerome, district attorney, for respondents.
   Scott, J.:

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 no-t, 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 re1lato-r 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 Hew York, in the county of Hew York, on the 1st day of January, 1901, and thereafter continuously until the- 1st day of December, 1902, one Richard A. Canfield did, at the city of Hew York, in the premises known as Ho. 5 East Forty-fourth street, in the borough of Manhattan, use certain rooms and allow them to- be used for the purposes of gambling. The relator insists- at the outse-t that this information is not sufficient to invest the magistrate with jurisdiction to proceed with an investigation into- the truth of the allegations, resting this- contention upon People ex rel. Laird v. Hannah (92 Hun, 476; 37 N. Y. Supp. 703). The information which was condemned in that case was quite different from that in the case at bar. Section 145, Code of Criminal Procedure, defines- an information as- an “ allegation made to- a magistrate that a person has- been guilty of a designated crime.” The defect found in the information in, the case cited by the relator was that it did not charge any person or designate any crime, or state, even approximately, the time and place when any crime was committed. The present information names the person accused, designates the crime of which he is accused and the place where such crime is said to have been committed, and the dates between which the aroused is said to- have continuously committed the criminal act. The information upon which the respondent Wyatt acted was sufficient to confer jurisdiction upon him to' examine witnesses under section 148, Code of Criminal Procedure.- (Blodgett v. Race, 18 Hun, 132; People v. Hicks; 15 Barb. 154.) 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 ex rel. Kenny v. Cornell (6 Misc. Rep. 568). 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, Penal 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.” (Subd. 6.) Section 148 of the Code of Criminal Procedures 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, and refused to answer, the question whether he had ever been in the premises said to have been occupied as a gambling, house. His refusal to answer was1 distinctly placed upon the ground that to answer the question might tend to criminate him. The provisions of the Penal Code respecting gambling are very stringent, and make it a crime under certain circumstances for any person to participate in a gambling game. It was assumed on the argument, and may be accepted as true for the purposes of this decision, that while to answer the question would not of itself require the relator to confess to a crime, yet that his answer might afford the prosecutor some facilities for fastening the crime of gambling upon him, supplying, perhaps', the necessary link in the chain of evidence required to' convict him. The provision of law under which the relator undertakes to1 defend his refusal to' testify is found in section 6 of article I of the Constitution of this1 State, which provides- that no- person “ shall be compelled in any criminal ease to' be a witness against himself.” There are certain crimes', of which gambling is one, which are usually committed under such safeguards of secrecy and precaution that it is difficult for a prosecuting officer to obtain evidence concerning them unless he can compel those who have participated in the offense to' testify thereto-. To meet this difficulty section 342 of the Penal Code- provides- that “ Ho person shall be excused from giving testimony upon any investigation or proceeding for a violation of this chapter [reflating to gambling], upon the ground that such testimony would tend to convict, him of a crime; but such testimony canno-t be received against him upon any criminal investigation or proceeding.” It is urged that the immunity offered by the statute is only partial; that, though the witness-7 own testimony cannot afterward b© us-ed against him, he may, nevertheless, b© compelled to disclose matter which will lead to his- prosecution, or to reveal the existence of evidence, other than Ms own testimony, which may secure his conviction. This objection was raised and directly passed upon by the Court of Appeals of this State in People ex rel. Hackley v. Kelly (24 N. Y. 74), and was overruled. In that ease the- same constitutional provision was invoked by the relator, and he was met by a similar statute of indemnity. In an opinion by Judge Dexio, concurred in by all the members of the court, it was said: “ 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 evidence1 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- o-wn guilt apparent or at least cap-able 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). It stands, therefore, as- the law' of this State, as declared by its highest appellate tribunal, that such indemnity as is extended to- a witness by section 342 of the Penal Code meets and overcomes the privilege or protection afforded him by the Constitution. I am not unmindful of the fact that in a later case (People ex rel. Taylor v. Forbes, 143 N. Y. 219) there are expressions in the opinion which seem to indicate that the court was disposed to accept the broader rule now established in the Federal courts, but there was no question in that case of any statute of indemnity, and, therefore, the question raised in this proceeding was not presented. I, therefore, find myself constrained to- follow the rule, still unreversed and unmodified, which was declared by the Court of Appeals in the Haokley case (supra). 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 is 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.) 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 ten 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.) 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 ten amendment® 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; Maxwell v. Dow, 176 id. 581; Missouri v. Lewis, 101 id. 31; Matter of Kemmler, 136 id. 448.) My conclusions', therefore, are that the information laid before the respondent Wyatt was sufficient to invest him with jurisdiction to inquire into' the truth of its allegation; that having acquired jurisdiction he had power to exclude the public from the inquiry, to subpoena the relator and require him to be sworn and to testify; that while the question put to the relator and which he refused to answer might tend to criminate him within the meaning of the Constitution, but for section 342 of the Penal Code, yet that that section furnished him all the immunity which the Constitution requires; that the question was, therefore, one which should have been answered, and that relator’s refusal to answer was contumacious and unlawful, and such as is declared by section 143 of the Penal Code to be a misdemeanor; and finally, that the relator cannot excuse his refusal to answer by invoking the Fifth Amendment to the Federal Constitution. The result is that the writs must be dismissed and the relator remanded.

Writs dismissed and relator remanded.  