The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-06-03

Before Hon Judges Nelson and Belts.
IifI AsRDER or asa A. HAyENS-sLNrEACE or

Thomas Benson color, a. we're placed At the bar to
receive for the murder Of Asa Ravens, Sc,
cond mate Of the American bark Glen The prisoners.
Clements and Benson had been recommended 20 mercy
BY the jury All the prisoner looked very much crest
fallen though way altered in personal appear
ance since their conviction.
IN, Unsed States Edrard F Douglass, Jaaes cie-
WANTS, aRd Thomas Benson Motion for a new trial
Judge Nelson delivered the opinion In this the
motion for trial Is denied Ii il proper 70 say
that the judges do not altogether agree in respect 20 the
point made AZ To the right VI the 10 the qua
lined rerrmptory challenge that is the right 10 set
aside juror without and to have him finally
cudssi from the panel unless exhausted by the ehA.
lenges Of the prisoners IL the jury list il exhausted be-
fore the panel completed 1t Is admitted the thus
aside must be called aud unless challenged
by The government for cause This qualified right Of
challenge without 10 the settled doctrine Of the
common law, and has been recognized by the Supreme
Court 81 the United States and practised upon in
or the circuits The doubt that is raised arises under
the act OF July % 1870 which provides for the desgna
ton Of jures TO ia the federal by ballot
otherwise according to the mode of selecting
the States and for this purpose the courts empow-
cred to mako rules and regulations for conforming the
designation and empaneng Of juries TO the laws and
u,ages Of the States hey may exist at the time
rule to this effect has been heretofore adopted in this cir
cult My brother Belts il inclined to think that this Las
adopts along with the mode Of selecting empaunel
ling Of the jury the law Of the regulating the right
OF challenge, and which would quahad right
OF premptory challenge that belongs to the goverumen
common law such Is the law Of tho state. My
opinion is that il applies only TO the mode ana manncr
drawing selecting the jury that is by ballet lot
otherwse, prescribed by the State laws and does
not affect the questions involved on the right OF chal
leD3o IL respects the jurors called whether pereptory
or for That these questions stand upon the COM
law except where rcgusted by acts Of Congress.
The in this completed before the jury
list exhausted and before the privilege Of perumptory
challenge belonging to the prisoners exhausted The
question therefore, in the particular case is CT
substantial importance the fair and proper adniutrn
ton Of justice. Great lberslity extended BY the
Court 70 both sides In forming the PANEL with view TO
the selection Of an impartial and Intelligent jury and
such eminently the character Of the obtained
Judge Belts then said Not having had the opportu
nifty to ere the note OF the decision just read By the
presiding Judge, II having necessarily been prepared
since the close of the consultation Saturday afternoon,
think II proper to state that the ground. upon which
object TO the right Of the District Attorney 10 the quail
bed challenge allowed the United states the trial does
not rest wholly upon the act of Congress referred TO-
think that act implicitly recognizes the usages q the
State Courts in empanneng juries to be the rule by
which the United states Courts DO guided crml
trials and that the whole legislation Congress the
subject looks to rendering the proceedings in the Fcde
raj Courts respect to jurie with that
der the State authority The English practice referred
to has prevaed in this State for early 1886
i Wa declared by statute that when the Attorney
ral challenges person Indifferent he shall imme-
diaey assign and show the Of challenge the truth
OF which Is to be inquired Of and tried in the
the challenges Of other parties Tho same provi
zion re-eacted in I1ss and passed into the rcvsons
the statutes 1901 and 1873 and the Revised Statutes
ct 1879 IL is plain TO all the authorities We
have consulted in conference that the law
the Crown, in capital cases right Of perempory
challenge TO unlimited extent which exercised At
once when the jurors were called and not the special
AMI contingent challenge used in England That
right 81 per- mptoy challenge taken from the Crown
by the act OF u Edw. !. but the Courts q that
day construed that act to authorize the Crown,
instead making a challenge, TO require the juror
objected 20 10 stand ASIDE until the prisoners Chal
ienyrs peremptory and for cause, we're all dis
poscd Of and then If the panel was exhaust and
Jury not found, the crown must show cause for its
challenges and not before statute in the terms
passed the 9th Of George " and all the judge ofhe
Kings Bench in cases, declare th, peculiar
right u challenge rests upon those and the
depreciation put upon them by the courts The act a
Eiwsrd If IL was ever law 10 this state ~ss abolished
With al ether English by the state act passed
February n lTes and accordingly there ha never been
IA hi STATE any usage cHma6e 10 thai sanctioned in
and rndtr lint al he nj
in thi- district since their organization in 1920 have
followed the aud practice Of the state cour5 In
Obtaining and empanelrg Jures and in conductng pro
Jings before them in capital when la~ II
C,Dgrs special rule a the United states Courts pre-
siibed different procedure; and that long continued
u.agc snd practice eluisa TO special adoption Of
state law by rule ~ court do not think the piac
tee y the English courts under acts OF Parliament
py authority 70 " which We can properly follow II
resort the law for the rule governing
chaengps IN capital shall b. compelled 70 adj
MT perenptory chAen On the part OF the government
without limitation, and nc claims privilege pre-
,stve broad for the Luitrd states In my opinion
lie Attorney when nc challenges juror, T. bound
tie the prisoner, immediately t. ~ ign the
cse and have II tried aud accordingly the court erred
al he trial in allowing differ to be- purs ued
IT, disagreement d The Judges this point doe,
af.ct the result u the notion in opinion
o. ~ he other points against granting new trial
ldge Nelson then taid-Elwardf Douglass. you have
u. Indicted tired for the crime OF murder and
havr beer convicted BY jury q that offence Have you
n.hiog 70 SAY why the srnnee Of the la- shcGld not
~ pronounced upon yuu
Douglass IN uumov,d and unfslterng voice
and you'd mo- BE- received :. h court sim ODER the
thing
Jais N,lon-Jamc. Clements. you have also been ia.
uirid ,gd tried for Ga, crime Il murder aud after full
49, pa:ieai heaHng have bren convicted lave !ou
unytlicg e Oner'
tt,aguts-Nothirg sir ani net guilty
.ui-a helson-ILomas Eeuson. yOu also have been
trd 80 convicted = III CRIME. Lave 80 any
B,a.sa-Sothing more than 40, guilty
THk SENTENCE.
uis- frion thrn rrocecdsd to sentence ~ three N
-a,e mea anid III breathless silence q O. court
rLe crime q murder II which each . you have
4 convicted " TN Jury after raen, trial aud able
u.c11e ~ your council committed On board the
l,rt G,cu on tn high 80, in the Pacific Ucesn somc
81 end nile tfoni niy coast IN her voyage home C.
the ptd itnas COMMITTED upon the second mate q the
vraafl Al A Baycns. between the hours a tv0 and
~ o'clock. "a the morning = the 17ib y Hep-
ttmt~r al II was his watch, and two u you Douglas
81 Csneuts beiOn2 ~ IT, the other Benson the
ccs "A bad re duty r. Pr time upon u" dccE Cha
sn,.H 80 master aud George Waite the brst mate,
We fcov IN Their berths asleep alec
th r'-i RI the except flcauand who belonged A.
yuf watch and wa ne tie time At the wheel bnl rho
IT say psrtic patrd the crime Besides The officers
30 nip who have b,en mentioned there ia an
~ - ennen snd the eek % board and you srtfed
Ill opportunity e. carr iug Into rrecuii0u yoar wicked
alI stT1ticnl de- Ign Viii. all WIRE thu bsUw sttp in
tNes hrths except D., murdered mate and yourselves
rl tls nan ~ the wh,rl ihr Whole = the iuriud
PIG scrrsfNr BIC y hiftfs =. VALPARAISO and wfrr
- .'rnrert g. tLc tnrtr q thr ship fou hal teen
b.aFt ir,stbar sisy day and ~ere bat eighteen fr.m
rf' rhn az planned al entered ut0n thc execution
~ - criminal prrpoe lhe slip "a. fretbtcl With
yluslle cargo worth ssne 10 - which Eocsn H.
800. IT, fouie ~ you lstetnd W the lafing a1d -
tsrs there reason e. heit VI thst y0u uTpo4l he
hsi = lard ace Ius1ty q p,cr To- iaet 4 q,
naEt. q Hhvcns. - is hrt stcp ~ rreceu RCD
F.sn Ct sriyr pirititas tne hin sud uaurp thr
mand - been proved iy"ni ~ doubt - controversy
pr q purrc.' yru haa socrety obtained ra rson 4
thn h H.s gru. arttue gfi-ets arms y IN, captain
ts~iifr uith tho aWmuntron, nud. Va Nl- vhv
hsd deliberately armed your ~ the attack ana
Asl teprivcd tlr officer. and s ether 81 y6ut com
rho might adhcrp me duty sui remain loyal
4 tasf rag q tie mean. Il raslan,, whoa the IN.
a. rInlf YM 8fs ada ltw