The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-11-22
LEGAL INTELLIGENCE.


THE kATx SLAVE TRIAL MOTION on BEHALF WI
CAPT. SMITH FOX SKw TRIAL.
Nov. 21-James Smith eds tie Cnited .StCsy.-In
this case Mf. OC"nor and y. Dusuiny were counsel
for Captain Smith, convicted last Of cksg in
slaves Gfscoast Of Africa sad Cuba, and Mr. John
hcKeon, United States District Attorney, and Mr..
Joaimssen, KITS associate Appeared the government
Tie present motion Was application for trial
Nj. O'Conor commenced by reading the following afr
davit made by himself =
CITY and CorHy Of Ner York k-Jumes Smith ads
the nied Stales-Chsres O'Conor Of sail elty being
sworn says that counsel for the defendant
Quoted all the proceedings the trial or this
behalf u said defendant He says that in opeAing
that the defendant went to Boston Completed the
purcbae OF The Julia Moulton and the Of the
care proved The iact OF such purchase by witness
from Boston Stinson, except that snson did
moi remember the CT the defendant and by other
witnesses proved the registry Of said by
the doleLaaAt subject 10 the like qualification. The
identity of the defendant the person won't To
Boston and bought and brought the vessel New York.
directly proved by his admission WILL the caiei
Wines for the government None OF these wi<nc ,ses
were ia any questioned or examined u any
,lese facts by the defendants counsel nor in any
stage Of tie case until the Judges charye was anv a.
lection urged intimated by either side the fulness
distincness suihciency of their evidence esab
lis the facts alleged, but on the contrary, it was
fact med Throughout, that perfect sale had
made in Boston, and the occasion of the defendants
writ to that place, whereby the title Of the ORR
ginaf previous owners extnguished. This de-
ioLent in summing up to the jury asserted that
d e..
the national character oil the vessel and the citizenship
OF the defendant the issue before was su
gle, c. the citizenship OF the defendant himself and
he summed that single question Of fact alone sub
ect TO the certain preliminary
ierred concerning the Portuguese Consul his secreta
ry and one senior mos The co unsel for the govern
ent accepted t sue thus rendered and confined his
argument to affirming the citizenship OF the prisoner
tacy conceding throughout that the national character
oil the vessel not separate question: This depunents
present best recollection and belief is that the
Tor the government identified the handwriting
fendant 10 the OATH &c, made by James Smi,
ton-but be cannot positively ahrm that fact. No inn
portance, in his view, attached this evidence and it
may not have received his full attention This deponent
completely surprised by the suggestion in the
OF the Judges charge that the OF the s the
vessel from the original Boston owners, proper
question Of for the consideration of the jury that
they might scrutinze the evidence tending point
Judge Of its suiiciency, hold the prisoner charge
able with the burden Of maintaining the anirma
tive, and condemn him If he had not done SO
This deponeat had never, after the opening, for an
instant advered to the possibility Of such going
to the jury. He fully informed that the fact was
indsputably 60, and that disputed it could easily
be proved beyond any possible question. This depo-
sale by the Boston owners thus asserted through
out he gave close attention during the trial the ap
pearance Of any possible ground for finding that some
and although intending to insist that the burthen Of
proving any such person to BE- citizen lay upon the
government he still determined TO prove the national
favorable to the prisoner. And under this head,
testified that the defendant told him that Senior
Lemos the real of the vessel, aud that
the Secretary OF the Portuguese Consul accompa-
MED him TO Boston, and paid for the vessel To meet
the possible suggestion that through the interest OF
person other than the defendant pointed at by this
testimony, there might be ownership employment
Of the vessel which, in whole in part was Ams-
rcan, this deponent called said consul and proved
by him that he was himself foreigner, and, at
the time In question: had secretary and several
witnesses also proved Senior Iemos to b. foreigner.
This deponent says, that this appeared in the result,
to be overcauton his part for the counsel for the
the secretary OF oment and expressly asserted that
the evidence about Senior Lemos had nothing 10 with
the case-And the court conforming to this view OF the
issue before the jury omitted the submission them
any as to the said Consul Or hs ssppossd sec
The affidavit of Captain Smith, the prisoner
simply that lawyer of New York was present wtn him
in oston when he paid for the vessel and taat he could
THUS prove that the vessel was his own
Mr. oConor then proceeded to argue at considerable
ted the grounds for a new trial.
First Point-It being undsputed that the defendant
the jury the question of bis citizenship without record
proof Of his naturalization, especially that fact il
existed, must have been very recent. l. The crime Of
piracy, being punishable with death, is necessarily Of
greater turpitude than perjury which not captaly
punished and consequently it should rather be pre-
sumed that the oath taken at the Custom Hous was
false than that higher offence ccmmitted-
(Blights lessee Rochester, Wheaton, 535; Con-
dens Reports, SS9 Noble vs. Fenwick, Randolph 5s5)
Second Point-lt erroneous to submit TO the jury
for their consideration that the defendant might have
obtained his naturalization by fraud and perjury Bank
Holbrook IL Peters, 81 IS; Roach Hullings l6
Peters, 326; Greenleaf Birth, Peters 299; OTIS
Watkins, Cranch, 3e7 !, Ihere was no evidence
immoral nature cannot be presumed without evidence.
Ill. 1t is not admissible to presume without evidence
that crime of equal grade has been committed in
trder to exculpate the party from particular crime Of
which there is evidence
Third Foint-1he defendant was entitled to prove tho
universal habit the house administer oaths
loosely rreverenty and without reading the affidavit TO
the party. Especially was he entitled to shew by the
u1,xr~ NJ
oath was read in any in his presence Al
though the witness did not remember this particular
there ample proof Of his being present ut the
time (Dougherty administrator Goggin, J.J. Mar
shal 376)
1t to the jury to find the negative Of fact assumed by
all parties during the trial and prmd dci, proved by
the prosecution l. In all trials much is tacitly taken
for granted by general assent (Jackson vs. Collins Sd
Cowen s9 H. fany exception to this rule exists it Ia
in criminal where perhaps in favor Of innocence
Liberty and e tine % s
would be allowed any party in civil case Ill To a.
low the government in capital case, after all the ev
trap upon the prisoner charge him with the burthen Of
supplying proof of fact which insisted upon by the
government from the commencement, supported by
uncontroverted evidence on behalf OF government
and assumed by all parties Is thing unheard Of In
judicial annals Under such circumstance to permit
condemnation to death because the evidence OF such
disputed facts offered by the government ITSELF when
subjected to cautious and rigid scrutiny failed fully
to establish the fact would be reproach to the admin
istration Of criminal law The injustice perpetrated
against the accused could not be designated by its
true name without the use Of language which the
r fth Point.-Tnere before the jury ample prima
dce evidence Of the sale by the original Of the
Julia Moulton Such evidesce being uncontraiicted and
unqucstsoned in any way was, IN judgment OF law
elusive The jury had power to disregard IT, and It
was error instruct them that they might find against
it, (kelly Jackson Peters 53l2 the United states
Virgins, IA letters, 347; Mutt Minor, IA Howard
4s6) First point-1. The probdndi not in thu
accused in this (Wharton's Grim. Law 265 note
and cases cited second editien) 2. Presumptons Of
guilt, without proof, cannot be admitted in criminal
sixth Poiut-Thc verdict ought to be set aside and
q trial awarded.
The United States District Attorney, Mr. John McKeon,
replied contending that trial should not be award
ed the testimony, the whole proceedings, and the
charge of the Court were accordance with law and
justified the verdict OF the jury The points on which
the counsel for the based hs argument were
as follows
FrsIhat the defendant having answered ready for
trial upon the indctmens. must be presumed to have
been fully prepared wiz I. ~ ,vidence lie therefore
could not have been i.d by any evidence on the