When a proper case arises, the constitutional and statutory provisions should be applied in a broad and liberal spirit to secure to the citizen that immunity from every species of self-accusation implied in the brief but comprehensive language in which they are expressed.- People ex rel. Taylor v. Forbes, 143 N. Y. 219, 38 N. E. 303.

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. (N. Y.) 229.

[3]

What statutory provisions are sufficiently broad. Interst. Com. Act, § 12, as amd. Feb. 11, 1893, affords absolute immunity against prosecution in state or federal courts, for the transactions and matters to which the question relates, and a witness will not be upheld in refusing to testify.- Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. R. (U. S.) 644, affg. s. c. 70 Fed. 46.

U. S. Rev. Stat., § 860, was not broad enough to secure immunity, because it did not provide for immunity from prosecution, for a witness asked to give testimony which might incriminate him. It could not and would not prevent the use of his testimony to ferret out other testimony to be used in evidence against him.- Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. R. (U. S.) 195.

N. Y. Const., Art. I, § 6, provides that no person "shall be compelled in any criminal case to be a witness against himself." N. Y. Penal Code, § 342, provides that "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 used against him upon any criminal investigation or proceeding."- Held, that the Code provision is not as broad as the constitutional guaranty, and hence does not remove the right of a witness to decline to give incriminating testimony. It does not prevent the use of evidence which may be procured through information elicited from him, but merely excludes such testimony.- People ex rel. Lewisohn v. O'Brien, 176 N. Y. 253, 68 N. E. 353, affg. s. c. 81 App. Div. (N. Y.) 51, 80 N. Y. Supp. 816.

L. 1899, ch. 690, known as the Anti-Monopoly Act, does not infringe on the personal privilege of witnesses and their constitutional protection against being compelled to give self-incriminating testimony, although such Act may compel the giving of testimony in preliminary inquiries by the attorney-general to secure testimony to assist him in drawing his complaint or preparing for trial.- Matter of Davies, 168 N. Y. 89, 61 N. E. 118, 56 L. R. A. 855, revg. s. c. 55 App. Div., (N. Y.) 245, 67 N. Y. Supp. 492.

The mere immunity to a witness of not having his testimony used against him in a criminal prosecution is not sufficient to deprive him of his constitutional privilege of refusing to incriminate himself, but nothing short of full immunity against future prosecution for any criminal offense which his testimony tended to disclose, will suffice.— People ex rel. Taylor v. Forbes, 143 N. Y. 219, 38 N. E. 303.

N. Y. Const., Art. I, § 6, provided that no person should "be compelled, in any criminal case, to be a witness against himself." N. Y. Penal Code, § 79, provided that any person violating the sections thereof as to bribery "is a competent witness against another person so offending, and may be compelled to testify upon any trial, hearing, proceeding or investigation;" also that "the testimony so given shall not be used in any prosecution or proceeding * * * against the person so testifying" but that "the person testifying to the giving of a bribe which has been accepted shall not thereafter be liable to indictment, prosecution or punishment for that bribery."- Held, that the immunity conferred was sufficiently broad, so that the compelling of testimony under the section does not infringe any constitutional guaranties.- People v. Sharp, 107 N. Y. 427, 14 N. E. 319.

A provision that "the testimony so given shall not be used in any prosecuting or proceeding, civil or criminal, against the person so testifying," is broad enough to meet the requirements of New York Const., Art. I, § 6. The latter does not protect him against the possibility that his testimony, though it may not be used to convict him, may make easy the discovery of other admissible testimony which will have that effect. The witness' protection is only against being compelled to directly give testimony against himself at his own trial.— People ex rel. Hackley v. Kelley, 24 N. Y. 74. Apparently overruled in People ex rel. Taylor v. Forbes, 143 N. Y. 219, 38 N. E. 303, to conform to the doctrine of Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. R. (U. S.) 195. But see People ex rel. Lewisohn v. O'Brien, 176 N. Y. 253, 68 N. E. 353, which says that the Court of Appeals has not gone so far as to overrule People ex rel. Hackley v. Kelley, but has only adopted a less technical and more liberal interpretation of this brief provision of the Constitution."

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A provision of the usury statute that the answer of a defendant in a case thereunder shall not be used against him before any grand jury, or on the trial of any indictment against him, is broad enough to secure the witness the constitutional immunity.- Perrine v. Striker, 7 Paige (N. Y.), 598.

The statute authorizing a Supreme Court Justice to examine certain New York city officials, provided that the answers of a witness "shall not be used against him in any criminal proceeding."- Held, that in spite of the decision of the United State Supreme Court in

Counselman v. Hitchcock (142 U. S. 547, 12 Sup. Ct. R. (U. S.) 195), and the New York Court of Appeals in People ex rel. Taylor v. Forbes (143 N. Y. 219, 38 N. E. 303), the provision is valid as affording sufficient protection. Witnesses examined under it cannot be compelled to be witnesses against themselves in respect of a criminal offense. If any part of it had to be construed to the contrary, that part only would be void. The part which empowers the judge to punish witnesses for contempt for refusal to answer does not apply to questions which a witness may refuse to answer under his said constitutional privilege, but only to questions which he may be lawfully required to answer. This interpretation of the statute makes it constitutional.- Matter of Leich, 31 Misc. (N. Y.) 671, 65 N. Y. Supp. 3.

L. 1897, ch. 383, § 7, known as the Anti-Monopoly Act, provided that " no person shall be excused from answering any questions that may be put to him upon the examination, on the ground that it may tend to convict him of a violation of the provisions of the act;" also that "the testimony given by a witness in a proceeding or examination under this act shall not be given in evidence against him in any criminal action or proceeding, nor shall any criminal action or proceeding be brought against such witness on account of the testimony so given by him."-Held, that these provisions are not broad enough. to secure the constitutional immunity to the witness. While they would protect him from an indictment for perjury because of any falsity of his testimony, they would afford him no immunity from prosecution for the crime which is revealed by the information which he is compelled to disclose.- Matter of Attorney-General, 21 Misc. (N. Y.) 101, 47 N. Y. Supp. 20; affd. 22 App. Div. (N. Y.) 285, 47 N. Y. Supp. 883.

The protection afforded by the Fifth Amendment to the U. S. Constitution is a personal privilege extended only to the witness. He cannot set it up in behalf of any other person, or any corporation of which he is an officer or employee. As between the witness and the corporation, the latter is a third person, within the meaning of the immunity section.- Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. R. (U. S.) 370.

Where the scope of an investigation is broad enough to enable the examination of a witness in particulars which could not tend to in

criminate him, he has to be sworn, and is left to assert his privilege if it should be infringed on during this examination. He cannot claim the privilege in advance.- Matter of Leich, 31 Misc. (N. Y.) 671, 65 N. Y. Supp. 3; Skinner v. Steele, 88 Hun (N. Y.), 307, 34 N. Y. Supp. 748.

The constitutional claim of privilege may be raised by the witness upon a motion made in his behalf to vacate the ex parte order under which it is sought to compel his testimony. The witness need not wait until the examination is in progress and a question has been asked tending to incriminate htim.-Matter of Attorney-General, 21 Misc. (N. Y.) 101, 47 N. Y. Supp. 20; affd. 22 App. Div. (N. Y.) 285, 47 N. Y. Supp. 883.

In an investigation into a transaction, a witness does not waive or lose his right to decline to testify as to it, by testifying that he had no connection whatever with the transaction.- People ex rel. Taylor v. Forbes, 143 N. Y. 219, 38 N. E. 303.

That the witness has previously given testimony denoting his innocence in the transactions under investigation does not destroy his right to claim the privilege of refusing to answer on the ground that his testimony might incriminate him.- People v. Lewis, 14 Misc. (N. Y.) 264, 35 N. Y. Supp. 664.

A witness attending an investigation pursuant to a subpoena and testifying there under oath, cannot be considered a willing or consenting witness, and failure to assert his privilege does not amount to a waiver of it. People v. Sharp, 107 N. Y. 427, 14 N. E. 319.

No law can be valid which directly or indirectly compels a party to accuse or incriminate himself, or to testify by affidavit or otherwise respecting his guilt or innocence. The constitutional immunity from every species of incrimination may be as effectually violated by a law which compels a person to plead or deny upon oath any charge involving a criminal offense, without regard to the form of the investigation, as by a law compelling him to testify as a witness.- In re Peck, 167 N. Y. 391, 60 N. E. 775, 53 L. R. A. 888; Gadsen v. Woodward, 103 N. Y. 242, 8 N. E. 653; People v. Courtney, 94 N. Y. 490; Thomas v. Harrop. 7 How. Pr. (N. Y.) 57; Hill v. Muller, 2 Sandf. (N. Y.) 684.

Compelling production of books and papers,- see ante, § 19, notes [3]-[6].

When a corporation, after a notice to produce books and papers, objects to such production on the ground that they might tend to incriminate the company, the company should produce the books for the inspection of the court in order that the court may be able to determine as to the sufficiency of the excuse given.- Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 Sup. Ct. R. (U. S.) 178, affg. s. c. Vt. -, 66 Atl. 790.

A witness who cannot avail himself of the Fifth Amendment to the U. S. Constitution as to his oral testimony, because of an immunity statute, cannot set it up against the production of books and papers, as the same statute would equally grant him immunity as to matters proved by the same. Production of books and papers under a subpoena duces tecum does not violate the search and seizure clause of the Fourth Amendment.- Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. R. (U. S.) 370.

An officer of a corporation charged with criminal violation of a statute cannot plead the criminality of the corporation, in order to resist the production of its books and papers. The corporation is a creature of the state, which has a special right to examine its books and papers.- Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. R. (U. S.) 370.

Compelling the production of contracts between railroads and coal companies which resulted in the abandonment of a proposed competing line by the latter, is not a violation of the Fourth and Fifth Amendments of the U. S. Constitution.- Interstate Com. Commission v. Baird, 194 U. S. 25, 24 Sup. Ct. R. (U. S.) 563.

In an action against a railroad corporation by a shipper for violating the Interstate Commerce Act, it cannot refuse to produce its books, papers, etc., on the ground that the contents thereof would incriminate it.- International Coal M. Co. v. Pa. R. Co., 152 Fed. 557.

On the trial of an indictment under N. Y. Penal Code, § 344a, relative to policy playing, private papers and property of the defendant, claimed to have been unlawfully seized by police officers, were received in evidence for the direct purpose of proving the handwriting of the defendant on certain policy slips, and his occupation of the premises in which they were found.-Held, that this did not constitute compelling him to become a witness against himself, within the meaning of N. Y. Const., Art. I, § 6.- People v. Adams, 176 N. Y. 351, 68 N. E. 636, 63 L. R. A. 406, affg. s. c. 85 App. Div. (N. Y.) 390, 83 N. Y. Supp. 481.