The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-10-21

sUrRxnlR COURT.
Before Chief Justice Edmonds and Justices Nit
chell and King

The Case OF Caxpel. the Murderer.
surRxnlE COURT.
Before Chief Justice Edmonds and Justices Nit
cheu and King.
OCT .2O.-He~ry Carsa Us. HE Psop,e-in Error.
The prisoner was convicted of murder at the
Oyer and Terniner In Ne York, in March last,
and was sentenced to be executed in May Before
the day appointed for his execution, his counsel
prepared bill Of exceptions, obtained a reprieve
Of execution until July, and applied to the Judge
who presided at the trial for the allowance OF
writ Of error. Before that application was passed
upon the counsel for the prisoner withdrew it, and
gave notice of application to set aside the convic
tien on the ground of rregularity, and obtained
from the Governor a further reprieye, in order to
make that motion. ON the day following the de-
csion Of that motion adverse to the prisoner, his
counsel obtained from Judge, out Of the district,
an allowance of writ of error on the bill OF excep-
tions and an order staying all proceedings on the
That wit being returnable this term, N. b. Blunt,
District Attorney, moved to set it aside II. Gin
ton and A. l.. Jordan, contra.
Chief Justice Edmonds delivered the opinion of
the court. In regard to the objection made by the
prison ers counsel against the District Attorney
appearing in the case and making this motion it is
enough to say that under the sta tute, X. S. TAI,
sec. a. the strict Attorney has, at least concur
rent power with the Attorney General; and 1t will
be time enough to determine which has the para
mount authority when conflist shall arise between
them. In the meantime it is not competent for the
prisoner TO raise the question. II is sufficient for
him that the motion against him is made by one
having authority to make it. The main motion il
to quash the writ Of error, on two grounds. First,
because Of concealment Of material facts from the
officer who allowed the writ; and, second, because
that officer had no power to allow writ Of error,
incorporating into 1t an oder to stay proceed
ings. In respect to the first point, we took
occasion to say, on the argument, that the ex-
PLANTATION Of the prisoners counsel was entirely
satisfactory. And all that is left us to consider is
whether the Judge had power to stay proceedings
on the judgment after q sentence had been pro-
nounced. Upon this question, which is one of con-
struoten Of statute, we have no aid from adjudi-
cations. We have been referred to only one case
(Freeman's) where such an order has been granted,
and in that case the right to grant it seems not to
have been . subject OF discussion or adjudication.
confess my FIRST impression on this subject was ad
verse to the existence of the power The section Of
the statute so often referredto q r. s. 65S sec 49,
is very explicit in its terms" No ju ige, court or
officer, other than the Governor, shall have any
thoriy to reprieve or suspend the execution of any
The revisors, in their report recommending the
section, say, that "the preceding or some other
provisions concerning the suspension Of executions
seem absolutely necessary. Those stated (viz., Ia
macy and pregnancy are the only cases where the
interference Of any other power than that of
the Governor can be necessary. Without EXPIRE s.
ing an opinion whether the judges courts possess
the power OF suspending executions, it is yet
suspend judgment in case of doubt, and is SO
obviously liable to abuse and conflicts with
the powers and duties of the Executive, that
its exercise should be expressly prohibited"
1t will be observed that it is "reprieves and SUI
pensions Of execution, that are alone forbidden to
all others, than the Governor, and it becomes
material to inquire what is meant by those words in
the statute, We can gather that meaning from an
the Revised Statutes were enacted, in defining the
power Of the Executive in article III, sec. 5,
says he "shau have power to grant reprieves and
pardons after conviction for all offences, except
~r1 Af aLw
victions of treason, he shall have power to suspend
the execution" &c, until the Legislature can be
consulted The Rev. Statutes vol l6i, sec. also
enacS in regard to his granting reprieyes and
ecutiOn in cases Of treason Thus showing
plainly what reprieve or suspension il was that
was to be prohibited to other officers, lest it
nigh" conflict with thepowsrs and duties of the Ex
ton to the terms under consideration. If convict
under sentence of DEATH becomes insane, the Sheriff,
after certain preiminaries, may Suspend the exc
cution" until the Governor shall issue his warrant
directing the execution. And so, in case Of preg-
nancy, be may in like manner "susp pend the execu-
ton" The term "reprieve," as applied to con-
yicts, has definite meaning; 1t postPones the
time Of execution to definite day. while 'suspen-
claimed, nor has been, that the act complained of
by the District Attorney, In this case, was . re-
prieve; It was a suspension, If at all within the
statute under consideration. The object Of the
cutiye and other departments of the government
The power Of the Governor to grant absolute
pardon needed no protection from the statute,
tor it was confessedly vested in him, and in
him alsne. But his power to reprieve, that
is TO defer the execution until definite time, did
quire such protection, for il was claimed and had
then recently been exercised by other officers. In
Miller's case, in ISIS, reported in Cowen, $50,
court Of Oyer and Termner, after sentence Of death
had been pronounced, and the time for execution
had been fixed, hat interfered, by postponing the
execution TO day certain and beyond that origi-
naly appointed and had thus, as It was claimed BY
judge, whose conduct was arraigned on tina. occa-
sion, in letter which has, believe, received the
almost universal appreciation of the jurist, Of
state claimed that the power existed in the judges
of granting reprieves to such time as might be
necessary to give room to apply to the executive for
o pardon; that IL belonged Of common right to
every tribunal which was invested with autho-
rty to award execution and was ne more an
executive than judicial power. II was to put
an end to this claim and exercise Of power that the
statute In question was recommended and pass
ed Thus far the origin Of the statute has been
regarded only a. II affected reprieves There
was one case, and only one, In which the Governor
vas authorized by the constitution or the laws to
suspend sentence for an indefinite period, and that
In cases of treason, where the power TO pardon
was expressly prohibited to him. Now, as the
power claimed by the judges was rested upon
veil as reprieves, and rs the case Of treason was
Of those put forth by the presiding judge that
instance, as one where the power might be exer-
cised, the reyisors land the Legislature following
their recommen dation) deemed Il proper 10 extend
its prohibition beyond the which had actually
occurred to one which might occur. IL was in sub
stance, therefore, enacted that, as the Governor
had power In all cases except treason and peach
ment, to reprieve for definite period, the power
should not be exercised by any other sficer, and
that a be had power in cases Of treason to suspend
for an indefinite period, that power in like
manner should not be exercised BY any other
one And thus the object Of the statute
I ween the executive and judicial departments.
i have already remarked, that the act complained
OF In the case before us, was not "reprieve,"
within the sense Of that word az used in the consti
tuition and the statute; and nov add, IL is equally
manifest that II was not "suspension" within
that sense. IL was, however, claimed on the argu-
ment, that IL the strict letter Of the statute
would bear such construction, il was evidently the
intention Of the Legislature TO prohibit the exer-
else Of any power over, or Interference with, the
sentence by other than thu (,overnoy and