The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-03-27

After come further argument BY the Dtrist AttD
snd Mr. Van Buren, the Court said he would take Nttn
RI, Court took a reccss for an hour
% rast,mbling, the Judge decided on admitting the
testimony reerving to himself the power 10 exslude il
not proved to be part OF tho expedition fest
within this district II it has been proved shall Be
proved mat General Lopez wa % command this expo
lition, and that 1t wos to b. consolidated under one
s.,slsi head ii would be competent lie would adnait
eyusec OF the general character Of the expsdi.
nr'ng tne right to alter tho decision II the crcu.
STANCES showed that they were connected lie (the
sos any other expeditions; IL admitted to show II
Shagaetci.et tue expedition sci foot within this
District.
Mr. yan Durcn &gs 1;soceednr 10 make .ou,e ...-
eostons when the bs4rct Attorney said order to nut
end to this dieussioa. Which eendsd To such con-
sumption Of time he would Withdraw Abe witness and
state that the prosecution is closed The Dltrc. At
torney then said that the witness TezecSak felt arcved
that the District Attorney had Lterposed yesterday,
when he asked the question by the counsel Cor the
defence to hs stealing pair Of boots and that lac
enough that the couns had stated IT, and that the wit
ncss rendered himself 70 anawer the question in the
negative.
The Court then said it was understood that the
evidence the part Of the prose- closed and
that nothing but rebutting testimony would be claimed
by them lie then called for lie witness Bursnet..
d. H. Burtnctt brought into court by the Marshall
when Mr. Van Buren, renewed the question which the
witness had before declined to and for the refusal
Of which lac stands committed Q.-What took place
between you and Mr. Chacon the morning you called
at the Consulate Al decline to answer; have al
Mir Van Buren, said 1t was competent now for the
Court make a commitment for the witness for q
definite nnmbcr Of day. and To mpose ine. lie sung
retsd that this should be done end would 30 tor him
then after consulting with us ellen and his aesociate,
Mr. Bantnan (Mr Cutting being taent) 70 state the
course they were disposed u take.
Gr Holman said that Whatever suggestions the gem
tlcnon had to make ought to ~ made they wsud
probably enable the Court TO say what disposition would
BE- made Of the witness.
Mir Van huron had al along the grcat omaarrass-
mcnt In going on With this case under The prsent po+i-
tiOpC of " he I'M of
p,cuuiary fine and further comn.mtn MT might induce
the witness to answer ond ne (Mr Van - would ASH
the Court TO adjourn I'll ut being past
four ociock in order the, furtnct might bc called up
again after having an oppor unity Of considering bis
position IT he l. not crn-s-cgami cd his Jrcc. testi
mcny will OF bo stricken ont; but the dfc,ilty
IT. the jury viii almost necessarily retain impress Of
portions Of it on their mind or he (Mr. Van 3D.
will move the Court to compel the prosecution 10 postpone
the trial abandon the proceedings when this mans
testimony on which alone they can proceed stricken
stands in this way the trnl cannot proceed
Mr.. Hoffman said the prosecution could not consent,
under any circumstances to delay which may tend to
the chance of this bcu thrown The term
which ends Monday week rather than run that risk,
they had given up the examination Of Mr. Williams The
idea Of trying thii ali again forbidden by
circumstance OF the number OF INV ling witnesses which
h,y had in the case They were willing to grant cyerv
convenience the defendants COUNSEL bat mpcrioH
Of duty compelled them to resist any delay Az to
Eurtnctt the court punish him and the only effect
upon the Of his refusal to answer will have IL that
his testimony shall be struck and the power Of this
court over him ceases with his punishment lie (Mr
ii moi think the counsel Tor The defence
their suggestion that the case should be abanioned be-
tho testimony of Bnrnett to be stricken out
Every particle ofhs evidence has been corroborated aud
stands amply strong for the cause of Justice
After some observations from Mr. Van BIren in
reply. the Court intimatcd thM they might If they
pleased. 20 with the crossexnination passing over
that question The counsel for the defendants aid that
that might effect their right to apply to have HIS direct
testimony struck out asked Judge hc intended
to puni the vii ness separately for each contempt
The Court have not made up my mind ON that point
f,rti rLl uacl thr JudU
said IL Is the Judgment Of the court that the witness pay
fine OF $3.50 for the contempt aud that he stand com
mitted until the fine be paid A. they were through with
the evidence Of the prosecution wabu reasonable that
the defendants counsel should have time to confer and
theJuds. ordered the Court to be adjourned to l0H
o'clock this (frday) morning
Mr.. Burtnctt was again given into the custody OF the
Mar hai and removed.
SEVENTEENTH DAY.
MAncn 26--Thc Court called the counsel for the
defence to proceed with their ease
Mr. Van Buren, raid TINT since the adjournment Of the
court he had had opportunity Of consulting with his
associate, Mr. Cutting who will not return until to-mor
row. He had however consulted with MIR. Bionkman and
his clients aud without the did OF Dir. Cutting lac
left to lay suggestion before the court with
ference to this in thrce-foi character The court
nd themselves ut the end Of investigation of nearly
three weeks Tho prosecution have closed their ease
cali upon the court to discharge them submit the
II stands. lie proposed II this should be refused TO
call upon the court 70 compel the prosecution 10 elect
which count In the indictment they will rely upon The
court would that in this there nnetyscyen
counts charging the detandants ~ them,
with the offence in different forms. The right OF the
court to compel the cuon to elect nc presumed,
would not be denied ly the other side He referred to
the People W. Baker 81 Hill l59 and great variety
Of cited page CO. under note A. The aud
circumstances under which the court will compel the pro-
secution to elect are IN great degree loft to the dscre
ton Of the court and he submitted that this Of
those in which tho discretion Of the court
should be exercised in favor Of the defendants Tho rst IL
counts are for beginning an expedition at New York.
t. be carried from New York against power at peace
with the United States. to wit, the Kingdom Of Spain
The counts from to thirty for setting
foot military expedition or enterprise against power
at peace with the United States from th thirty fifth to
the seventy fifth count they are charged with providing
means for military expedition inst Spain from the
seventy fifth to the ninety count the defendants
charged with preparing those There also
differences OF phiscoogy in describing the place against
which this expedition to b. operated The indictment
also charges tho defendants with carrying expedi
ton against place to the Jurors unknown liz referred
to the decision Of Judge Belts the motion quasb
this indictment reported IN the New York Legal
ing on this branch OF the Gaze; but he had very
strong conviction, from IN examination Of the
statute-taking all the testimony to be true-that
defendants within the meaning Of the statute The pro-
uon and the Court may ray that this is question
that had better be submitted 10 the jury but he submit
ted If the defendants within the prohibition Of the
statute, il ought not to 90 the jury There circum
judgment to take the opinion of the Court at this stage OF
the proceedings In the first place witness lurtnett)
for the prosecution without whore testimony they
not 20 on has been committed for contempt IN refusing
to answer and the defendants stand IN the peculiar posi-
ton that they were TO be tried for crime which is
charged on this mans direct testimony. and which would
send them to the state prison for three years BURNETT
recalled he still refused to answer, and there
was thing In the manner q the man TO show that
he would give the defendants the benefit Of his
examination. lie (Mr. Van Burcn) merely now urged
to the Court the position in which they stood,
and the injustice Of allowing this to be disposed 81
whilst the examination Of that witness has not been
had lie did not that the effect OF the testimony Of
that witness be unless the Court would say
to the jury whilst il not proper usual in this Court
to grant non-sut we do not think that in this ease the
jury bound to convict the defendants. Then he
(hr Van 3D. submitted that it Is proper for many
that the should be arrested at Anothe.
uggcstiGn was, they had fecn occupied nearly three
weks in hearing testimony Of CONVEX atious and notes
and Of signs Of the military expedition; and ii the de-
PENDANTS were called on 10 explain all those Noes and
conversations, and contradict each particular state
mcnt, aIS are expected to call witnesses fJr that
purpose. the consumption Of time would be- enor-
nous. that II there il u doubt this Ia the time
when the should be entirely arrested. There
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