FIRST DEPARTMENT, MARCH TERM, 1903. [Vol. 81. his examination was adjourned until two P. M. of the 22d day of December, 1902, and he was paroled in the custody of his counsel. While the proceedings on the arraignment were still pending he was again subpoenaed to give evidence. He attended at the time and place designated accompanied by his counsel, who again demanded to be allowed to be present, stating that as upon inquiry an effort might be made to obtain testimony tending to incriminate the relator he was entitled to be present as his counsel, but the magistrate ruled against him on this and he was excluded from the room. It appears from the stenographer's minutes that the only persons present at the hearing besides the relator and the magistrate were the district attorney, his assistants and the stenographer. Upon being called as a witness, the relator stated: "Before being sworn in any proceedings taken here, I demand that my counsel be present, and I further demand that this proceeding be public. I protest against being sworn on the ground that these proceedings are private proceedings and are not public; that my counsel and the public have been excluded; on the ground that there was no authority in law for the issuance of a subpoena in this proceeding requiring my attendance, nor any authority in law requiring me to attend; that the subpoena served upon me is unlawful; that the Court has no jurisdiction to entertain these proceedings or examine me as a witness, and if my protests and objection be overruled by your Honor, I desire them nevertheless to be noted on the record so that I shall not be deemed by my subsequent action to have waived them." The magistrate overruled the objection, and the witness stated, in answer to a question, that he did know Richard A. Canfield; but, during his examination, after having answered other questions, he was asked, "Well, when did you first become acquainted with the premises No. 5 East 44th Street?" and answered, "I decline to answer for the reason that the answer might tend to incriminate me and that it might tend to expose me to a penalty or forfeiture; that this proceeding is not a legal proceeding, as it is not public, my counsel having been excluded; that there was no authority in law to compel me to appear here and testify; that I have been sworn only under compulsion, after having made my objection and protest; that, as I am informed, there is no information before your Honor against FIRST DEPARTMENT, MARCH TERM, 1903. App. Div.] Richard A. Canfield, but a proceeding upon information which was at one time before your Honor, but which is no longer in this Court, inasmuch as it has been removed to the Grand Jury." The witness declined to answer the questions, "Prior to the 1st of December, 1897, did you know the premises No. 5 East 44th Street?" and "Prior to the first of December, 1897, were you ever in the premises No. 5 East 44th Street?" for the same reasons. The witness still persisting in this attitude, even upon the magistrate directing him to answer, the hearing was adjourned. It appears that the relator informed his counsel of the questions which he had declined to answer, and he was advised that the Statute of Limitations would be a bar to a criminal prosecution for any crime committed at the time to which the questions related, and upon his counsel informing the magistrate that his client declined to answer in ignorance of the statute, and was now willing to answer the questions previously asked of him, the proceeding was resumed. After again taking the stand the witness was asked: "Q. I repeat the question: Prior to the 1st of December, 1897, were you ever in the premises No. 5 East 44th Street? A. No. Q. Have you ever been there in your life? A. I decline to answer on the grounds given before. Q. Have you ever been in the premises No. 5 East 44th Street in the City and County of New York? A. I decline to answer on the ground that it might tend to incriminate me. The Court: I direct the witness to answer. The Witness: You ask me, in my life? Mr. Osborne: Yes. The Court: Having had the promise of immunity and under the section of the Code, I direct you to answer. Mr. Jerome: You understand, Mr. Lewisohn, that the promise of immunity of the District Attorney is absolute and complete, and he offers to accept you as State's witness in this matter, and promises that no prosecution of any kind or nature whatsoever will be had against you by reason of any matter or thing that may appear in your testimony, or any matter or thing that you have done in connection with the matters which you may testify to, and that also the statute gives you immunity - you understand that? A. I do. By Mr. Jerome: Q. And that the Court now consents to the offer of the District Attorney to accept you as State's evidence in this matter and approves of the immunity offered you, which I take to be correct? The Court: That is right. Q. And that FIRST DEPARTMENT, MARCH TERM, 1903. [Vol. 81. not only is there this immunity guaranteed you by the District Attorney, but that section 342 of the Penal Code also guarantees you immunity. With all that clearly in your mind you decline to answer on the ground that it would tend to incriminate you? A. Yes, and that it may tend to expose me to a penalty or forfeiture. By the Court: Q. I direct you to answer. A. I respectfully decline, Judge." Upon the final refusal of the relator to answer he was allowed to withdraw from the room, and the magistrate thereupon, upon the depositions of an assistant district attorney, and of the stenographer setting forth all the proceedings in full, issued a warrant for the arrest of relator which was delivered to one Michael J. Gannon, a peace officer of the county of New York, who arrested the relator. Before the relator was arraigned Gannon was served with a writ of habeas corpus commanding him to bring the relator before Justice Scott of the Supreme Court; and another writ of certiorari was also obtained directed to Justice Wyatt. Upon the hearing of the issue joined by the answer to the return of the writ of habeas corpus and the demurrer to the return of the writ of certiorari the order appealed from was made. Alfred Lauterbach, for the appellant. Howard S. Gans, for the respondents. LAUGHLIN, J.: No question relating to the regularity of the practice upon the issue of the writ of habeas corpus and certiorari is presented. The principal question arising on the appeal is whether the information filed against the relator on which the warrant was issued discloses facts showing the commission of a crime by him (People ex rel. Bungart v. Wells, 57 App. Div. 140), and this depends upon whether he was justified in refusing to answer the questions on the ground of the privilege conferred by section 6 of article 1 of the State Constitution. If not, the question was both relevant, material and proper, and his refusal to answer, assuming that the information filed against Canfield gave the magistrate jurisdiction, authorized his punishment by the magistrate under section 619 of the Code of Criminal Procedure "as for a criminal contempt, in the manner provided in the Code of Civil Procedure," and subjected him to a criminal prosecu App. Div.] FIRST DEPARTMENT, MARCH TERM, 1903. tion for a misdemeanor under subdivision 6 of section 143 of the Penal Code, which provides as follows: "A person who commits a contempt of court of any one of the following kinds is guilty of a misdemeanor: * * * Contumacious and unlawful refusal to be sworn as a witness, or, after being sworn, to answer any legal and proper interrogatory." The offer of the district attorney and the consent of the magistrate to grant the relator immunity from any criminal prosecution would not bar such a prosecution, and, therefore, could not afford him full immunity therefrom. Section 342 of the Penal Code, contained in chapter 9 of title 10, relating to “Gaming,” which embraces various crimes, commonly known as gambling and kindred offenses, provides 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." It is contended in behalf of the People that this section affords the relator the full measure of immunity guaranteed by said section 6 of article 1 of the State Constitution, which provides, among other things, that "no person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation." The relator, on the other hand, contends that, if he shall be required to testify that he visited this alleged gambling house and to answer other questions. relating to his visits there and to what transpired, information will be disclosed which will afford a basis for a criminal prosecution against him for some of the crimes embraced in said chapter 9 of title 10 of the Penal Code, even though his evidence cannot be introduced against him on the trial. The People rely on the case of People ex rel. Hackley v. Kelly (24 N. Y. 74), which, if it remains in full force as an authority for all that was decided, would undoubtedly be controlling, and under it the relator would not be excused from answering the questions, for it was there held that the provision of the State Constitution of 1846, which was precisely the same, did not protect a witness in a criminal prosecution against another from giving testimony FIRST DEPARTMENT, MARCH TERM, 1903. [Vol. 81. which may implicate him in a crime when he has been protected by a statute against the use of such testimony on his own trial, even though the information thus elicited facilitates the discovery of other evidence by which the witness may be subsequently convicted, and, furthermore, that this constitutional protection only extends to evidence given by a party upon a criminal prosecution against himself. The fifth amendment to the Federal Constitution, which was ratified by this State on the 27th day of March, 1790, provides that no person shall be compelled in any criminal case to be a witness against himself." At that time there was no similar provision in our State Constitution, but in the second State Constitution, which was ratified by the people in 1822, a provision the same as that now contained in section 6 of article 1 was incorporated in section 7 of article 7 in precisely the same language as that contained in the Federal Constitution and presumably adopted therefrom. Similar provisions, in some instances differently phrased, were incorporated in the Constitutions of the several States. As these constitutional provisions came before the courts for judicial construction the decisions were not uniform. It was held by the highest court in some States that nothing short of absolute immunity from criminal prosecution for a crime would justify requiring a witness in any action or judicial proceeding, whether against himself or another, to disclose his knowledge of facts that might tend to indicate that he was guilty of an offense; and in some other States, as in this, it was held that immunity against the introduction upon a criminal prosecution of the evidence thus elicited was the extent of the constitutional guarantee. It is manifest that these corresponding provisions of the Federal and State Constitutions were designed to confer the same individual rights and afford the same protection; and, as has been since declared by the Supreme Court of the United States, they should receive the same construction. That learned court in an opinion delivered by Mr. Justice BLATCHFORD, in which all concurred (Counselman v. Hitchcock, 142 U. S. 547, 584), discussing this point, said: "But as the manifest purpose of the constitutional provisions, both of the States and of the United States, is to prohibit the compelling of testimony of a self-criminating kind from a party or a witness, the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem |