
    Supreme Court, Special Term, New York County,
    September, 1904.
    MATTER OF THE COMMONWEALTH OF PENNSYLVANIA
    (45 Misc. 46.)
    Jurisdiction.
    Sec. 618a Code Crim. Pro. authorizing the issuance of a subpoena to compel a citizen and resident of the city of New York to appear and testify as a witness in a criminal action pending in the State of Pennsylvania is unconstitutional in that it deprives the proposed witness of his liberty without due process of law, and, in effect, banishes him from his own state.
    Motion "under the provisions of section 618a of the Code of Criminal Procedure for a subpoena directing a citizen and resident of the city of New York to appear and testify as a witness in a criminal action now pending in a court of the State of Pennsylvania.
    Joseph K. Ellenbogen, for Commonwealth.
    Phillips & Avery, for proposed witness.
   Blanchard, J.

This is a motion made under the provisions of section 618a of "the Code of Criminal Procedure for a subpoena directing a citizen and resident of the city of New York to appear and testify as a witness in a criminal action now pending in a court of the State of Pennsylvania. The proposed witness appeared by counsel upon the hearing of this motion and stated that he objected to the issuance of the subpoena and submitted his rights to the protection of the court. This objection should be sustained because the section of the Code of Criminal Procedure upon which this motion is based is void for unconstitutionality. It proposes to compel a citizen pf this state to go into a locality over which the legislature and courts of this state have no jurisdiction whatsoever. This statute was not passed for any public purpose affecting any interest of the people of this state or of any of the citizens thereof. It would deprive the proposed witness of his liberty without due process of law. Its effect would be to banish him from his own state. I can see no grounds upon which this statute can be sustained, and none is urged by counsel for the moving party. It appears to have been passed to facilitate the administration of justice in bordering States, but that is not a proper field for the exercise of the powers and functions of the legislature of this state. As the moving party has requested, and the circumstances call for an immediate decision of this motion, I have had no time to prepare more than this brief expression of my impressions. Motion denied, but as the question is novel, without costs.

Motion denied, without costs.  