New-York daily tribune., 1842-11-14


naer deaih on tie hteenh day Of The present month
The trial was humanely conducted Peculiar advantages
counsel deliberately considered the charge OF the
manifested unusual tenderness towards the accused
and the jury examined the evidence with extraordinary
patience and attention.
When verdict had been rendered application
trial the grounds Of alleged prejudice by juror,
improper conduct by the jury and other supposed resu
aritieS considered by the OF Oyer and TeTley
and justly denied. The presiding Judge then allowed
writ of error which the removed Sup
Court and in the time the sentence consequent
on the verdict delayed. That tribunal reviewed and
affirmed all the decisions OF the Court of oyer and Termner
which performed remaining duty by render
Jog hna' Judgement The accused then again demanded
writ OF error with obtain reconsideration by the
Supreme Court AMI inle OF adverse adudcaton
the record for revision 10 the Court for the
Correction OF Errors Such writ could only be allowed
by Circuit uslice o! The Supreme Court or the
Chanceiar The Circuit Judge who tried the the
Chancellor, and OF The Justices OF the Supreme Court
with the concurrence OF bis associates have severaly reiu
ed allow writ OF and the accused appeals TO
The Executive authority for is interpostion.
The application urged with degree OF elrnestness and
sustained by array OF influence unusual even such
occasions which fail awaken the apprehensons
of the conscientious and the sympathes OF the humane
The subject Is supposed TO involve the following III
qrres
ls Whether any law has occurred in the trial
2diy Whether The conviction contrary evidence.
3dly Whether the prisoner is proper subject for ce-
mency.
In regard the first Of these questions the Governor
by no prepared 10 that he not bound TO abide
by the decision of the Supreme Court Ii is The right OF
that tribunal expound the laws, and their e1posons are
conclusive upon every other department OF Government
until overrulsd by higher judicial authority The Govern
or does no, constitute an appellate tribunal review
the proceedings, correct the errors, and reverse or
modify the judgements Of csuT OF either civil or Grimm
jurisdiction Nevertheless, The pardonng power might
properly be exercised 10 save convicted person from the
consequences OF privaton of any legal right form Of
defence resulting either from accident neglect preu
dice or misconduct FROM judicial officers The accused
complains that writ OF error has been unjuy Denied and
il therefore becomes necessary to examine the grounds
which twas demanded.
When proceeding to the trial. the Court OF Oyer and Ter
miner discovered that there deficiency of unbiased
jurors and ereupon ordered tha, three hundred
SHOULD be summoned After the order had been executed
The accused applied for list of the three hundred
also be allowed two three days TO make inquiries
concerning thcn The request was denied. The Covert
is mol that any statute rule or custom OF courts OF
Justice violated by the decision
The accused then challenged the panel OF three hundred
persons several grounds all OF which overrued
bv the Court 10 Wit Because the number mas TOO
arge But il within the discretion of the Court de-
iermine how many should be summoned, and the result
showed that the number selected not large enough.
the order. nevertheless executed. Thirdly
Because the Sheriff had not furnished the counsel for the
on that officer Fourthy-Becduse the Sheriff selected the
three hundred persons Jy taking their from the roll Of
But The Sheriff was forbidden by law choose tue
hree hundred persons in that and there would
have been Just ground of complaint be had summoned
persons not legally ascertaRed to be Jurors.
The accused next insists that the ballots for the 45 persons
those containing the of the 800. subsequently sum-
moned should be put into the box But the Court directed
cheney of one juror; when further person
mCne the accused required that ballot containing that
IS first summoned who had not appeared when called.
The Court overrucd the request The last
moned was found not impartial and was set aside The
accused then insisted that those among the IS first
who had appeared should be again called, but
Court awarded order to summon another person,
and the individual then summoned being found impartial
received No rreguarty occurred IL these
proceedings
A trunk proved TO have been found in the dwelling
of the psoner, and in which watch belonging 10
the deceased had been discovered, was produced The
Court oyerrued objection, and admitted testimony
prove the OF the trunk. The decision seems TO
been reasonable and in harmony with the rules OF ev
denCe.
deceased except one might have been made with hatch
er. The Court admitted testimony designed TO show that
the wound might have been effected by the discharge
Of pistol One count in the indictment charged that death
produced with hachet another charged that il was
inflicted with unknown instrument The evidence,
nadmssbe under the first count, was unquestiona
bly, proper under the last count
The remains of the deceased having been exlumed dur
ing the trial, the head was produced IN Conrt with view
enable the jury apply the testimony with greater GER
tanty. The proceeding, although deemed erroneous by
the accused necessary and proper and sanctioned by
the law OF evidence.
Caroline Nj. Henstaw, witness for the accused during
her direct examination testified that she cohabed with
him, and he hereupon offered TO prove her good charac
for veracy rebut adverse presumption sup
posed to result from the fact thus disclosed The District
Attorney objected but the admitted that the
bad given her evidence with intention 10 testify
only the truth The Court lhereupon very properly de-
cned to receive unnecessary evidence of the veracy OF
witness who had not been npeached 10y The prosecution
and whose truthfulness had been conceded.
The 4h Section of Article /, Title 2 Chapter Part
OF The Revised Statutes, iiin the following words
'Such homicide is excusable when committed,
si. BY accident and misfortune, In lawfully correcting
"cd servant in doing any other lawful act by law
fu means, with usual and ordinary caution, and without
40 BY accident ard mistorun in The heat passion
fupon any sudden and sufficient provocalion, or upen
sudden combat, without any undu: advantage being
taken, and wnhou any dangerous weapon being used
and done in a cruel or unusual manner"
The accused objected 10 the charge oil the Court because
the Judge did moi instruct the Jury that The words by
cds,t and nforts in the second subdivision OF the sec
top were TO be rejected as Surpusage brt no authority
found for rejecting the words thus aedged TO be neceS
The Court also charged that if the Jury believed under
the evidence that the homicide tSs effected in cruel and
unusual maner would not fall within The last sub
division of section This portion Of tie charge con-
ered erroneous by the accused bat II To have been
in harmony with spirit well The letter OF tie law
The Court also charged the Jury that bomcide, be
Ycusabis must be committed without design effect
death The counsel for the accused questioned this posi-
,on But,he law declares that homicide can only be ex
cusable wbea it happens By accident and '0re and 1t
The ground upon which the accused demanded writ OF
that several decisions OF the Court OF Oyer and
rerminer which have been noticed erroneous. But
he wa, allowed TO present them or the consideration OF
the Supreme Court and they soemniy considered and
affirmed by that tribunal before the judgement
dered against the prisoner by the Court OF Oyer and Ter
miner The Governor only concurs with the Court OF
over and TerHllner and with 'he Supreme Court in The
opinion thai the objections raised by the accused IN
enable but he reason 10 dStTst he absolute CONN.,
the correctness Ot tnat decision manifested ny ne
Circuit Judge the Chancellor and the Justices OF The su
preme Court their refusal 10 allow second ~r OF error
Therefore the denial of this thus demanded does not
seem such hardship toward the accused as would call for
redress by the exercise of fsxecntve power
Alter the cause had been adjudcaed by the Supreme
Court and had been pronounces IA the Court OF
over Terminer accused for the first time assumed
the ground that the Aldermen who were associated with
the Circuit udge The ral were not Judges because The
laws by virtue OF which they aced in that capacity conflict
ed with the Constitution. That instrument contains pro-
vision declaring that all judicial officers twh exception
which application 10 the present question: shall be
appointed By The Governor and Senate Aldermen are not
s1 appoined but elected by the People. But Alder
men in the city NswYork have always been recognized
h, !. ss Judpes They acting such wheR