The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1849-12-18
Court OF Oyer ana Terminer.

Court OF Oyer ana Terminer.
Before Judge Edmonds and Aldermen Allen and Webb.
APPLICATION ON BEHALF OF SAMUEL DRURY AND SON
IMPORTANT DECISIONS.
DC. 1.-THE People Us. Samuel Drrsy and Samuel
Drt~y, Jr.-Judgs Edmonds.-This Court has power
not merely to hear and determine all elonies and mis-
demeanors but to try and deliver every prisoner who
shall be in the jail when the judges arrive in the orr
for whatever crime committed and all the justices OF
the county bound to attend the court order to
matters as liz within theif knowledge and Jurisdiction
and In which some of them have probably been con-
sss M ,S.
whenever this court shall have commenced its sitting
In any county, no prisoner. detained upon criminal
habeas corpus unless issued by returnable In this
court q r. s. 1885, S27) Hence is that the keeper of
every prison in county lin this county, including
also the penentiary is required to present to every
Court OF Oyer and Terminer, at the opening Of the
court, calendar stating the name Of every prisoner,
the time when committed, and by virtue of what pro-
and the Of his detention q r. s. 1877 925)
Hence this court has right to inquire into the alleged
aims house, b Sls) may let to bail before in
dctment, any person committed on any criminal
charge whatever. q X. s. TO. S3l) And generally to
inquire Of all crimes and eanors committed or
trabe In the county to hear and determine all such
crimes and msdemsanors and to deliver the jails
cording to law OF all prisoners therein u r. s. 205 9
Such are the powers Of this court, which invoked
In this case They extend to all the of relief
demanded by the prisoners and can find nothing in
any statute which limits these powers in case like
this, merely to the trial of the indictments and the
necessary incidents to such trial. The possess
ed Of the whole case and may do what Of justice and
according to law ought TO be done One part of the
motion made to US, has, since the argument, been
otherwise disposed Of are informed that new in
dictments have been found against the prisoners for
the offence and thereby the former indictments
have been qusshed. By this act, the motion for the
prisoners have leave to withdraw their pleas and to
qussh the indictments has been superseded The mo-
the and the snd ss
mony which they were arrested, must be granted.
To this they have an absolute right, and no officer
has IL In his power to withhold them from them.
Tho property taken from the residences Of the prisoners
unlawfully taken, and officer in the city, con-
nected with the administration of criminal Justice has
right to withhold 1t from the prisoners 1t is in
respect essential to the conviction Of the prisoners
the charges for which they are Detained and the pro-
visions which the Law has wisely thrown around the
right Of search have been too papaby dsregsIded to
any detention of the property 1t does not ap
on the motion now in the possession Of any officer Of
the court and there IT, therefore in the court
court to give any directions in respect to the prisoners
being seen by their counsel and friends That is q
prison and 1t appears that he has exercised that
troll with judgment and good sense His only mistake
has been in supposing that either the District Attor
ney or the Police Justices had any right to direct how
he should exercise his discretion After prisoner Is
committed to his custody his discretion Is uncontrolled
except by this court or the Court Of Sessions
IN Re Samuel Drruy and Samuel D,my, Jr, on Re.
turn 10 Hob. Co,pora-Judgs Edmonds The question
presented the return to the wrs Of habeas U.s.
whether the defendants being arrested a warrant
be deprived of the benefit Of the examination provided
by the statute by being indicted before such exsmna
ton shall be completed. The original object of
quirng the strates to make and return writing
their examinations In such TO prevent them
from discharsips through fayoritim or otherwse i'm
crime and as they obliged and yet. to return
all such examinations and all recosnzances to the next
Oyer and Terminer $50 that the Justices Of the people
proceed thereon their deporte mt In Office could
thus be reviewed and their corrected by the SUI
perer Court of criminal In Of time
further object had In view and attained; the
Superior Court, by psrussi Of such examinations,
the practice was continued was seen that these sx-
smnatons productive Of good In other respects,
such explanations In the fret instance demonstrated
their Innocence In the beginning Of the charge
against them To these various advantages,
statute has enacted that In all cases where party s
arrested on q warrant issued by . magistrate, on q
charge for any offence examination shall be had be-
be lawfully taken before Such examination must be Of
the complainant and the witnesses In support Of the
on oath and must be the Of the
not OATH and for that purpose he shall be informed
Of the charge against him. and be allowed . res
and on his request, his counsel may be present
the examination Of the witnesses well the pr
Alter bis examination, his witnesses he have
any o. all be and examined and he may have the
assistance Of his counsel such examination also
and be signed. II upon such examination 1t appear
that no offence has been committed, or that there s
not probable cause for charging the prisoner the ma
The statute provides still farther that though the
eistrats may not deem IL expedisnt to examine the
prisoner he shall examine him when required BY the
prisoner and all the EXAMINATIONS and recognzsnces
shall be certified and returned to the court at which
sstrats neglect to do co. he may BE- punished as for
contempt-2 r. zoo, S22, $40, ST. From these
provisions, II Is manifest that something more aimed
ct than merely OBTAINING prisoner In custody or sub
veillsDce The denomination Of the prisoners limo
T. IL a. - T.
also aimed at and It would be just improper for
magistrate to omit the examination Of the prisoner
established a. it would be to omit the examination Of
whose testimony might tend TO establish his
guilt. This 10 manifest also, from another considers
ton Formerly, grand jurors might be challenged BY .
prisoner for want Of any Of the required
But nov, by our statute any person held to answer .
secutor or complainant III. charge, any person
subponaed or bound by recognixsnce IS witness A
enssnge 70 me array ., any Juror, cannot
-. While this s intended for the protection Of the
accused IL evident that the right thus secured to
informed who Is his socussr, aud Who these are BY
whose eaths he held to the charge against him
minston conducted In the already mentioned.
IT, after arrest criminal charge the prisoner
can be indicted before an examination be concludsd
a. provided In the statute, the superior court Of orim
nal jurisdiction will Be In MEASURE deprived Of its
salutary supervision the committing msgistrates
the prisoner deprived Of the only opportunity which
our Law gives him, Of making personal expsnation
be deprived Of the invaluabs right secured to him BY
our Laws Of confronting his sccuser Of the privilege
Of knowing who are the witnesses against him; and,
above all Of the opportunity Of demonstrating by his
Witnesses his Innocence at the very outset OF the
against him. He will also be deprived Of
the assistance Of counsel In the proceedings
and Of his right TO challenge the grand jury. In .
word be may be deprived Of all the protection which
the statute has provided for him In the bsgisning Of
the charge against him against false accusation,
which may affect his life liberty asd character
true, ~ vas suggested on the argument that pers
may be indicted the first instance, without any OF
limpary arrest and thus BY the action Of grand
suaer the same consequences. The answer 20 Jury
palpsbls, and that 10, that the statpts this Il
vidsd this protection, and established n ~ pro
guards, only In case Of preliminary ARE .sss sale
not provided them In case that an sT ~ snu na'
the nrst step trusting, doubtless, the aotment o.
liberty Of the citizen, to the COED .nsrsoser and
DETERMINATION OF the grand inqus "ss sed SOUND
~, ~ substitute for the exsmin' - OF .ns o:un
other GASES. In ether words, the Huon required IN
deemed II necessary to throw sssasur. nave MOI
grand jury the same saf.guard ne me seuon o. tins
careful TO establish around q sn,on ~ mas oeen &c
justices. But this omission Ae ouon OF the police
the safeguards which bavst nfnhnes no resson Why
Of pr,Iimiparv srr.st sbs established In the
disrs~srded o s.cvve Ill be thrown aud utterly
81. ...x.,.. &C. A.. this right, and prsvsul