Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1837-11-21
CounT SESSIONS, Nov. lS-Before the Recor-
der Aldermen Rruen and Inpraham

done. According former regulations and manage
men, thus should have been sen ence day and under
proper regulation and management the court might
closed - abors this day credtaby for the present
session. But, no. they tried only one man--heard
part OF an argument for new trial, and adjourned
until Monday.
Benjamin Soulhwck was tried for obtaining meat
under false prelences, and representing himself he
Steward Of the Huntress to James Shaft who there
upon allowed HIM TO have what he desired. Not beng
able 10 obtain his money from Southwlck, he went
on board the Huntress ask for IT, and then learnt
that Sonthwick not the steward nor had he any
authority 10 obtain any thing in the name of the ves
sell The Court (bcing pretty learned in unac cases)
expressed Their doubts 10 the prisoners sanity and
he was acquitted on the ground OF being lasane.
The case of Charles Harrington then brought
up for hearing. He was convicted of "a constructive
larceny-obtainlng money from Sutton to pay at
certain place, and approprating II to his own use.
Messrs GIlfiln and Talmad le argued the case Tor
the prisoner and John A. Morrill, was associated with
the District Attorney.
addu ing proofs Of the alleged rreguary with which
the prisoners trial had been conducted the part OF
the prosecution. Mr. q. contended that Farrngts
case was not fully heard. Upon the occasion Of the
trial, his counsel mad no opportunity 10 sum upnel-
her did the Court charge the jury IN the matter; and
consequently they had not fair chance to lay all the
facts Of the before the jury. Again, after the
| evidence was closed, Juryman had been heard 10
express himself something after this manner he had
no desire or the jury generally had MOTTO hear sum-
! ming up on either sde or even charge from the
Court, because they felt satisfied in their own minds
that they could come 10 a correct decision without
that foImaty being complied with.
Mr.. G. then cited several cases 10 show that the
Court had the power 10 admit conylcts TO bail. lie
adduced particularly the circumstances in the case OF
Fritz, with which the Court well acquainted
He also insanced the case of the celebrated Tommy
Jenny, an Indian chief convicted OF the murder Of
squaw, at the Erie Circuit Court. He further men
toned that Ia the latter case question was startt d
and doubts raised as TO whether that court pos
a DeOnQlQp an
independent tribe. In order TO test that point the
proceedings against the Indian Were suspended, and
he was Immediately admitted 10 bail. The whole
case was subsequently argued before the Supreme
Court; and although that tribunal affirmed con-
frmed the previous conviction, they recommended
the Indian TO the mercy of The executive, and the final
| result that Tommy Jenny received full and free
pardon.
Rccorder-Oh! there cannot be any doubt that al
common law, the Court is fully competent TO admit
convicted parties TO bail.
Mr. g. then went on TO cite several cases from the
English law books and reports, order 10 show that
approvers as they are called, terminals who turn
states evldence) who have right 10 pardon can be
bailed for that purpose and he also nstanced
cord express statute framed 10 that subject
during the reign of William and Mary.
Mr. Phenix wished the gentleman 10 conhne HIM
self exclusively 10 the motion for new trial, and not
now 10 go into the merits and dement's OF the whole
trial.
The Coancil for the defence contended that they had
right if they thought proper, 10 argue the whole
matter at the present stage OF the business.
The corder then SAID, that he should not give the
opinion OF the Court at that ume although might be
proper state that the Court were not unanimous
The tried before Aldermen Merritt and
Whitehead The former agreed with the Recorder,
the latter did not He went on TO add, that If Far
rlngton should have new trial, and be again con-
vcied, he should deem il his duty 10 recommend him
10 the mercy of the Governor for free pardon, and
he would do So if the heavens should fall n0twlth
standing that part OF the Court had been assaled
his mail hy ha llr
We also understood him To say something about
having to walk 10 Albany barefoot for the purpose,
but could not catch the connection Of the sentence,
owing 10 the noise in Court.
Mr.. Griffin observed that notwithstanding the
strong ground and views taken by the Recorder, II
was much more desirable for Harrington to walk
out Of that court with the verdict of the jury his
favor, than merely 10 be able 10 exhibit as proof
of his innocence piece Of parchment with the sign
manual of the executive attached 10 IL tie there
fore hoped that new trial would be granted.
John A. Morrill, Esq, then rose to reply 10 the
arguments OF the council for the defendants, and
acquitted himself with great deal of ability. lie
cited numerous cases from the books 10 prove that
no charge OF lrreguary could be brought sgains a
jury after they had been sworn, and whilst they
were i'm the box. There might be objections 10 lu-
rors before they were sworn, on account Of their
having expressed their opinions 10 the guilt
innocence of the prisoner and on other matters;
objections might also be raised against jurors after
they had retired and returned into court with their
verdict on account OF some informally III their pio
cecdngs during their absence from the court room.
But, said the eloquent counsellor "before 20 into
that matter fur her, wish te enquire and ascertain
by what foul influence convict would be suffered
to get out of prison-to visit his own house-and
to be seen abroad in the company Of an Officer Of
this courtP
The Recorder knew Of no such permission hav-
ing been given and If such had been the case,
stated by Mr. Morrill, the keeper had done wrong
in permitting hr" TO pass out.
Mr.. Merrill then quoted a long array of autho-
rites relative 10 the challenging and obleciing 10
urois-iher duties-what portions of the proc ed
ngs might be objected, and on what grounds. The
learned gentleman added, that II the duty Of the
defendants counsel To sec that he had a proper
lury-and that the proceedings regular previous
10 and at the time Of the trial. H. after Jury retire.
they decide The case of prisoner by lot las IN the
case reported whether copper coin was thGown
up 10 decide the guilt or innocence OF the prlsoner)
then there existed grounds for granting new trial.
So in civil cases--f the iurymen should put down
twelve sums of money, and take the average Of the
same as the amount Of damages verdict rendered
under such circumstances might he set aside by the
Court-the proceedings of the jury would be vltiaed
by their own act But no precedent existed for
tlnting the verdict oil twelve sworn men, on
count of an expression that one might use whilst
they were in the box, and under solemn oath TO
render true verdict according TO the evidence be-
fore them.