The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1845-05-29
Price Two Genital

dice On the other hand were several instances on
this and the former trial in this in which gentlemen
have stated, upon first inquiry that they had formed an
opinion when upon being crossexamined by the prose-
caton became perfectly apparent even to the satsfac
on o. the counsel for the prisoner that they rancd
no opinion whatever For instance, Of the jurors,
Gardner testified that he had partial opinion,
crossexamned he stated that the only opinion he had
formed was, that II she guilty, she ought to be pun
ished Mr De W. commended from these and other il
iustraons the greatest latitude Of examination the
most searching course of inquiry should be permitted
in order to unve to the juror himself to the court
ana to the triers who pass upon the challenge
the real state OF his mind He cited case in LIST Ro-
pmgis Reports p 1885 in which it decided,
tnat the court erred in overrulng further Of
me character OF those mentioned above which were put
LOT the purpose Of showing, that Notwithstanding the
Juror said he had formed opinion he nevertheless
had formed one After some further remarks upon this
to consider the next matter complained Of in the deci
sion Of the court below, which this when vii.
having previously formed partial opinion he was now
more biased against the prisoner than ever hearing
their opinion" Judge Edmonds charged the triers first
that they were to inquire, whether Gardner had dis.
qualifying opinion before he here" Second that
bas as created upon the causes mentioned by Gard
nsr, does not dsqualify him. As the first branch of
the CHARGE Mr. De W. said that it plainly contrary
to law and contrary to the ruling his Honor cha
enges to previous jurors The only question be fe-
cided is whether the juror has disqualfying opin-
ion? If he has, he is incompetent It is the PRESENT
not former opinion which the prisoner has to fear
II he now has an opinion it is mmateria whether he
ever naa one before or hot II he had an opinion before
then excluded from the consideration Of the trcrs the
only important question for them to pass uponhas the
juror at present opinion Although of regard TO
the nfrmity Of the human mind the law will not De rmit
anror who has sworn that he has formed an OPT
nion to be asked whether he still cntertans it. II only
because there is fear that the juror is
judge of the operations of his mind; because is to
be apprehended however that the juror may apprehend
that his preudices have been discarded and however
honestly determined he may be to decide solely upon
the prejudice will be removed But if could be really
ascertaincd that the opinion formed has been for
ever and entirely removed, the juror would be compe
lent notwithstanding the previous opinion The Judge
therefore erred when he instructed the trers they
were to enquire whether the juror had disqualying
opinion before he here He should have instruct
ed them to enquire, has he such an opinion nov p
His Honor he commended, also mistaken in deciding
that bias existed by hearing others express their OPT
MONS in court did not dsqualy juror A bias Of this
kind is to be dreaded than any other opinion i'm.
preston prejudice on the merits of the case II is the
atmosphere from without and around the Juror the
knowledge of the feelings and opinions of his neghbors
relatives and feowcitizens the public camor for con-
victon or acqutta whch1more than any other
erferes with the security of private right the public
administration Of justice How often the guilty borne
umph Notwithstanding the cearest evidence of guilt in
consequence Unpopular camor raised misdrected SYM
pathy How often did the innocent stand trembling at
the very threshold of the law lest 10y should be offer
ed up the victims Of mistaken pubs prejudices? And
shall be said that one who, his oath and uponhe
stand Acknowledges his terror of popular opinion ad
verse to the prisoner and admits the bias created upon
his mind Gardner did shall be allowed pass upon
the life or death OF fellow being Shall it be permted
that judge shall decide matter Of law that such
bias is disqualification Mr. Dew cited several au-
thores in support OF his position this ground Of his
argument The next point to which he adverted was
this Roc Lockwood, upon his challenge for favor
that he had formed Impressions to the guilt or
from statements which he had heard and read the time
OF her arrest and from reading part OF the testimony
the last trial that would require strong
testimony to put his mind back where In reply
to question put by the Court he stated, my impress
sin nOf
acquitting what now know. He contended the
Court erred in charging the trer that the last remark
submitting an argumen, upon this point, and max.
ing some observations upon the importance Of all
Jury Mr. De Witt proceeded to discuss the points raised
during the OF the trial of the cause relating to
the rejection of evidence offered by the defence
tending that the Court erred the charge in relation
medical testimony introduced the trial. and resumed
his argument upon the following points introduced in the
support of his position. He further scontendcd The
Juage in admitting evidence Of the independent
acts Of the witness, George W. Houscman in the abb
of the prisoner The question put the cross
examination OF Mrs. Wampole proper and necessa-
ry lay the foundation required by law for mpeachng
her. She may have been bound answer the ques-
ton but she could not be contradcted upon the point
involved in it, without turning her attention to the SUBJ
she chose to do The Judge erred instructng the
jury, he did substantially that the jury should draw
unfavorable inference against the prisoner from the
absence of evidence of good general character. The
Judge erred in charging the jury that for them to
Judge whether the proof given by the prisoner OF her
kindness odspostion and affection for the deceased did
not acquire an unfavorabe tendency from the absence
of further evidence the subject Of general character
The Judge erred in directing the jury that the test
mony the part of the prosecution had shown that
prisoner might have been at the the fire Mon
day night the onus was cast her. to get rid OF the
pcion which thus attached to her, to show whore she
Monday night that in this respect the burden
did upon the prosecution but that there was
evidence enough to throw suspicion upon the prisoner
and entte them to call upon the prisoner to show her
whereabouts that night The Judge erred in refusing
charge requested that the prosecution prove
Mrs. Bodine to have been in the immediate neghborhood
of George Houseman's on the night of the fire.
After speaking for nearly five hours Mr.. De Wrrr
concluded.
Mr. CLARK opened in reply, and offered some brief
gument, n,relaton to circumstantia testimony when
the Court adjourned. He will resume this forenoon at
10 o'clock
Mr. GRAHAM will follow on the part ofthe defence and
Mr.. WHITING will wind up the argument.