The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-10-06
THE INDICTED MEMBERS OF TINE COMMON COUNCIL.
Motions In Quash Indictanents-NO witnesses
Before the Grand Jury,
COURT OF OYER AND TERMINER.
Rafore Hon Judue Rooseyelt


Before the Grand Jury
COURT OF OYER AND TERMINEn'
Before Hon. Judge Roosevelt.
OCTOBER 5-The matter of the people against the men,
bers OF the Common Council indicted for maieasance in
office. came up ON motion to quash the indictments in
the cases of Alderman Herrick Councimcn Heey, Wan
deli and Cooper respectively and also to fix days for the
trial of Aldermen Drake and Moser, who waived inor
malty in the indictments. The accused all in Court
and the attendance of outsiders quite numerous
Judge Roosevelt having gnifed tina; he was prepared
to hear arguments on the motions to quash-
Mr. James 7. Brady desired state that in the case OF
Alderman Drake he made motion to quash but wished
to have the trial set down for Monday any other early
day that the District Attorney might 6x
Mr. Hall submitted that the universal principle is that
where indictment indictments preferred against
several individuals like offence il lies in the dis
creton Of the prosecuting counsel to decide what order
the accused shall be tried In the exercise of that dis
creon therefore, he proposed to try Alderman Heryic
6rst to try Councilman Heey second to try Alderman
Moser third, to try Alderman Drake fourth, and Mr..
Cooper and Mr. Wande fifth and sixth Following the same
general principle he would contend that according to the
old principle of common law, motion to quash as to one
Indictment is motion to quash to all in the like case
This is particularly where the objection to the ndie
ment in this cas-as to the neticiency OF the jury
that question ii should be first disposed o before any of
the accused were put trial 1t in the discretion
OF the District Attorney, he contended to say what
order of trials he should determine on and il il was not
for counsel to force him 10 change that order.
Mr. BSady admitted that when number of persons
are indicted Jointly OF separately with reference to the
same cause Of complaint the District Attorney may ex-
ercise his discretion what order the should be
tried in But he contended there no analogy what
between that case and this Alderman Drake
officially and personally in fact and in law stands here
for himself alone, charged with crime Tor guilt, for
which he would not OILY be subject to heavy fine, but
also to heightened Imprisonment. Alderman Drake Ii
a candidate for election to Office II therefore highly
important that his guilt innocence should be settled
1t was probable man or men residing IN the same
ward a. Alderman Drake might deem it important to the
attainment Of their ends that he should be sacrificed
this way. lie claimed that it is the right oe partv iu
iiced to be tried at Nor is it true he said that
that the motion to qnash must apply to all these inict
ments Alderman Drake wanted to plead and 60 to trial.
and ready for trial to-day to Monday or
Tuesday. He denied the right OF the District Attorney
to fix the trial OF citizens In any he pleased
as to deprive citizen of his constitutional right to
speedy and impartial trial. He therefore moved the
Court Tor early trial of Alderman Drake.
Nv Hall-In reference to this point would refer your
honor TO the OF the People Captain Kinney where
the Count decidedthe defendant being ready trial
and the District Attorney not being readyta they had
no control over it, and that the only thing they could do
the tier discharge the defendau. his own
reeoga2ance which they did thus enabling the accused
to escape punishment
Judge Roosevelt said impossible for the Court to
make discrimination as to the order OF trials the
calendar That a matter for the District Attorney
alone who is presumed 70 exercise his prero2atve with
due regard to the public good and to the rights OF citizens
He ground for the Present motion 70 fix day for
the trs The only susiness before the court this
ing were motions 70 qlash which he deemed common to
NJ. Brady suggested that in the case Of Alderman
Cooper the motion 70 quash would be based other
grounds than those which he went in the other cases.
As Tor himself he had 10 attend in another court this
morning and would not be able 90 on with the argu-
meut GU the motion u quash.
Nh Busted, se for Alderman oser, addressed the
courtHe said that IL he OF Ade' Moser there
was no intention Of any motion TO quas the Indictment
The District Attorney notified that if it suited his
convenience they eady to go trial to-day and
they would TO quash the indictment.
He asked that the Cour name an early day in which te
trial Of Alderman Moser may proceed; he prepared,
and would oday with The leave OF the District Attorney
enter his plea. He deemed there evident impro-
priet postponipg tie Of Alderman Moser till after
the motion to auash in The of Alderman Her,ck
decided if overruled, till after the trial OF Alderman
attention Of the Court hnt Mr. Moser is Of the Alder
OF the CITY, and there many questions ftate
and judgment in respect Of his exercising a1ermanc
functions pending the Indictment preferred sganst him,
that in view OF his character he respectfully asked
the District Attorney give him prompt trial; ani
not lie urged upon the Court the proprety and duty OF
saying TO that public ocer that in this case nasmuch
there is motion 10 auash, and nasmuch the de-
teudant Is ready to be red and inasmuch as the princi
pal witness against hioWalter Jones--sa resident
Of this county, and be procured that Alderman
Noser ought TO be tried without any improper delay.
Judge RoosevcltIhe court has been in session since
Monday last and has tried but although
prepared to go with he trial OF There need
therefore be complaint oil delay far the Court is
concerned If these paries had originally at the
mencement of the term anxious go to trial they
might have done az least far the Court Is
cerned. As TO the order Of pro;ceaogs the same re-
marks which he had made in regard TO the application
OF Alderman Drake mast be made in the case ot Alder
Moser, namolytha The discretion must be left to
the District Attorney na til he suses chat discretion
interference DC oLered by the Court IN such mat.
ter
Mr.. Whiting proposed to proceed with the motion
to auash the Indictment in the case OF Cornelius
Cooper, OF the indicted Couneimen He would read
The affidavit OF the defendant which charged Tint accord
ing TO his information belief Luther G. Carter fore
man Of the Grand Jury, did not at the time OF finding
the indictment reside within Che city and county OF New
YorL.
stance Nr. Cooper and the other ahdayts, mat
ter entirely o, hearsay and irrelevant scanialous aud
the aiidavs before he allowed then to be read
and decide whether they admissible
The Court asked whether the affidavit on information
was fortified.
Mr.. Whiting-Yes, sir
Nj. Haii-No, sir beg Your pardon.
Mr.. Whiting insisted that they He thought they
were living in community where law should be almi
nistere1 openly they living in community wher,
may go TO bed nj night as innocent of offence a
the wife Of julius C-ar was, ought to have been
ana find at breakfast time, in the norntag, that
he has been indicted for some imaginary offence.
He asked how it was possible to show the Court
that the Grand Jury acted improperly unless he Il allow
cd to information and belief The AFFIDAVIT o
Mr. Cooper charges the fact on ntormation and belief
that the foreman Of the Strand jury which found the in
dictmcnt is resident of Queens county That is fact
which may be brought before the Court information
and belief and it IL or the District Attorney 20 deny that
If he The next fact in the allegation Is that the
has been resident Of that county for two years
The ne,t allegation Is, that The defendant i innocent
the fact with which he stands charged aud the next that
no witness before the Grand Jury against him
Now. he--counsel-shouid like to know in what way
defendant could bring such matter before the Court
cept on information and belief The other paper he he
was the affidavit of Mr.. Palm, the only witness who co,
have given evidence the subject, In which III
swears that he WAS called before the Grand Jury
and gave any testimony on the subject
II not possible that these facts should BE- within h
absolute knowledge of the defendant and be could there
fore only information and belief He contender
that they at liberty all events 10 have these All
aavits read and Gthoy admitted II then the duty
the District Attorney to show state OF facts differing
from those presented by the defendant lie referred IN
support of his argument, The OF the United state
VS. Coolidge, I'd Garrison, $685. and suggested that bt
Grand Jury had had competent witness before them
that fact could be easily proved by the minutes Of theiI
proceedings.
The Court suggested that the better way 70 proceed
would be to read the afdavts, unless there was some
thing scandslous in them.
Mr.. Hall did not consider that in thee particular am
davits there anything seandaous or mpertnent
Nv Whiting was glad 10 hear the District Attorney