The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-07-03


u. q. Commissloner's Court.
THE BRITISH DEsERTER-HIs DISCHARGE FROM
ARREST.
On the bench, Joseph Brigham and George W.
Morton, Esqrs.
JULY 2.-In the Mntter IF the Erfrafitiou of
Stephen PaLsh.-Mr. Gardener, on behalf of the
accused, offered to the Court paper containing
Reputation Of the charge Of robbery made against
Walsh, and simply asking for his discharge from
Mr.. c. Ed wards, counsel for the British Consul,
said that he supposed the is entirely with the
Commissioner, and that the evidence being closed,
this paper should not now be received. He (Mr.
T. said he had not pressed the case too strictly,
nor was it ever his disposition to do SO. He had
simply done his duty; but he could not consent to
this paper being read without his being heard in
argument upon it.
Commissioner Brigham intimated that as the
case closed on both sides, he would not.open it
again by receiving any papers.
Mr. Commissioner BRIGHAM then delivered the
following decision The prisoner is rested on
warrant issued on the requisition OF the Right
Hon. Sir Henry Lytton Balwer, X. G. B, her
Britannia Majestys Envoy and Minister Plenipo-
Tertiary to the United States Of America, by and
through the action and complaint of Anthony
pct That
Walsh and eight others be delivered up to the
British authorities, pursuant to the provisions of
the tenth section of the treaty between the United
That section is in these words" 1t is agreed that
the United States and her Britannia Majesty shall,
upon mutual acquisitions by them or their minis
tiers, officers, or authorities respectively made, de-
liver up to justice all persons who, being charged
with the crime Of murder or assault with intent to
commit murder, or piracy, or arson, or robbery, or
forgery, or the utterance OF forged paper, COM
mtted within the jurisdiction of either, shall seek
asylum, shall be found within the territories
Of the other. Provided that this shall only be done
upon such evidence Of criminalty as, according to
the laws of the place where the fugitive or person
so charged shall be found, would justify his appre
hension and commitment for trial, if the crime or
offence had there been committed and the respec-
tive judges and other magistrates of the two govern
ments shall bave power, jurisdiction, and authority,
upon complaint made under oath, to issue warrant
for the apprehension Of the fugitive or person
charged, that he may be brought before such judges
or other magistrates, respectively, to the end that
the evidence Of criminaty may be heard and con-
sidered; and if, on such hearing. the evidence be
deemed sufficient to sustain the charge, it shall be
the duty of the examining judge or magistrate to
certify the same to the proper executive authority,
that warrant may issue for the surrender Of such
fugitive. The expense of such apprehension and
delivery shall be borne and betrayed by the party
who makes the rcquistion and receives the fugitive"
The evidence shows the following facts That the
prisoner (Stephen Walsh) was one of nine men
under the charge of Richard Douse, a corporal of
st. Johns, New Brunswick. That on the morning
Of the Sth Of. May, at about half past one, Douse
was aroused from sleep in his guard room that he
was seized upon and tied by the prisoner (Walsh)
and some others Of the guard; that after his hapds
were tied, Walsh asked him if he would desert;
that he declined to do so; that Walsh then took
two keys and penknife from the breast pocket of
the great coat Of Douse; that Douse subsequently
searched for them, but could not find them; thar
the keys were keys which opened the wooden gate
and wicket, the entrance to the barrack grounds
and ordnance stores that said Walsh, with loaded
frelock, told him that he must either desert with
him, or suffer himself to be tied and aged; that
he refused to desert, and that the prisoner
with his companions then made their escape.
These are the material facts as testified, and
in the general outline, though not in the
particular circumstances, substantially admitted
by the prisoner in his own statement. Un-
der the treaty, the following offences are emu
merated:-Murd or assault with intent to COM
NIT murder, piracy, arson, robbery and forgery,
the uttersnce offorged paper In this careful and
specific enumeration Of crimes, the object has been
to exclude all political offences. Treason. mis-
prison Of treason, deserton from military service,
and offences of similar character, are not en-
braced in the treaty. The examination and com,
mitment Of persons charged with offences enumer-
New York, I'd Revised statutes, p. 1872, chapter 3D.
and would be complied with to all intents and pur-
poses under the treaty for the commitment Of a
foreign fugitive for trial by the testimony of one
competent and Gre dible witness, OF by the volun-
tary statement Of the prisoner, and from which the
magistrate should conclude that the offence had
been committed, and probable cause to believe the
prisoner to have been guilty thereof. The inquiry
for the examining officer is, whether the evidence
ofthe guilt Of the person charged would justify the
commitment of the accused for trial according
to the laws in force in the State Of New
York, if charged with its commission here.
The definition Of robbery, at common law, is felo-
NOUS taking of money goods, of any value, from
the person Of another, or in his presence, against his
will. by force and violence, putting him in fear
e East Z. e, 7o7; Black. Com 2t3; Russell
II. a. I...A
Hale, 652 } And the statutes Of Ne " York, follow
ing the common law, define robbery to DO the felo-
NOUS taking Of the personal property vi another
from his presence or in his presence, and against
his will, by violence to his person. or by putting
such person in fear Of some immediate injury to hs
person.-2d Rev. STAT, art. 8, S 50, p. 76t The
taking mutt always be accompanied with feloni-
Gus intent or amino turundi-2d Rus, y9l; East.
p. c., c Is, s 10, co. and to constitute larcen ny,
it is necessary that the party should have the inten
nenty, and TO convert it to the takers use aud
make il his own property-the word f,onious
being exploined to mean that there is no color
OF right or excuse for the act, and the intent
must be to deprive the owner, not temporarily,
but permanently, Of his property Regina rs. VIM.
Holloway, I'd Carr and kirwan, N. r., 9i2.
The whole question, then, is, does the case made
bring the acts OF the party accused within the legal
meaning OF the term robbery LIST. There is no
evidence in the 10 show that tho property
taken was taken from the person Of Douse, Or in
hs presence, by violence dire ctcd TO tia end The
force must be used as the means or instrument by
which the robbery is committed; the mere element
OF force Is not sufficient but the intent with which
il is uscd well as the degree, becomes material
IL is in proof, that the keys and knife taken
from the breast pocket Of the corporas greatcoat;
but there is proof that the coat the property
were en- the person of Douse, and although violence
used, it not for the purpose of the robbery.
In the case of Rex vs.. Crump, Il Carr Il Payne,
e5s,) it was held, that II person stealing other
property take horse, not with intent TO steal IT,,
but only to get off more conveniently with tho other
property, such stealing Of the horse n no FOL my.
GaIrow left it to the jury to say whether the pr-
soner had any intention Of stealing the horse;
for that il he intended to steal the other articles
aud only used the horse as mode of carrying OF
the other plumber more conveniently, aud, Ms it
were, borrowed the horse for that purpose nc would
not, in point Of law, be guilty of Stealing the horse
~ d the prisoner was acquitted on that count. ID
There is no evidence TO prove any antmHs JTgHii,
the probabilities being that the property was taken
simply 90 In tate the dosertion of the prisoner, aud
not lor the purpose Of converting the property to
his use. Rus. Grimes, y9l: East. L. G., Q. l6,
~, p. COZ; State Hawkins, Porter, i6l; Iios-