The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-02-25
LEGAL INTELLIGENCE.
Tho Lato Conviction FOR Arson,
SUPREME OOURr-0EsERAL rHRn.

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Tho Late Conviction FOR Arson.
sUPRxMR 00URr-GESERAL rHRn.
Presentation Judges Mitchell, Morris and Clsrks
Feb ai.-Cha A. PspoeIly, impssadsd, &C., pssiwsi6
IN error, " he People fine State Of Ne,o York dsfemd
ants in eyror-This motion for new trial ground
ed on the wing points
POINTS on PART OF PLAINTIFF IN ERROR
me objection TO evidence showing this acts con-
quot OF Iheo1ore H. Peverey well taken. under the
eireumstances and for the stated at foios a.
20 OF the Error Book The combination or conspiracy
between the parties indicted should have been hrst
shown This the foundation for the proposed proof
and shoud nave been laid before 1t received (rhs
feGss vs. Parish, Deno's r., 153.)
q TIE Cotton produced by the witness Thomas vas
nprupe, exhibited to the Jury ana - the burning OF
Son 10 The presence OF the jury was Improperly al
B. Tbs testimony Of David Lewis and Others vas I'm.
properly allowed by the Court. This Was not c=,c IN
which Il necessary for the prosecution to sho aly
extrDsc motive or for the commission OF the al
legged oheaee II was in effect allowing the prosecution
TO show that the defendant had already COMMITTED
had no previous intmation that such attempt you'd
be made for the purpose Of waantins tae conclusion
that be had nit.ed the offence charged gene
raj rule this would be most dangerous, and II improper
in any case, il was in the p. esent
4 The motion 20 strike out expunge from the case
the Testimony OF David Lewis and others properly
oyerrued bJ the Court This evidence had boon allowed
to show motive on ths part or the defendant for the
commission of the offence charged, /. the appropia
ton OF property ps ed wi h m storage 70 his
It did not meet the fact out left it to De inferred
g. The motion to the Cour. to direct the acquittal of
the de ndaat fol- 1.3 of the Error 30 Ok, ui-
properly overruled The BUILDING in which the (allege
preparations 10 fire made was not proved 10 be-
to be known to be- No. l47 Front street There thus
variance between the ind ctuent and tne proof (fio
People Slater, HILL 4ol.)
g. The definition OF the word "adjoining /" az cy.a Ia
the rst request of the Court to charge tho jar, Sts
correct, and he refusal of the Court as to the ,rse,
and its charge gwen upon th!. popt were r"neons.
The statute language that has perfectly well
deretood meaning This building attempted To b. hred
must edioin or II not adjon, must be within the :i
ege OF an inhabited dwelling In other words the for
building must touch the latteror u 1t dos not.
and removed distance from the latter IL must be
within the fence To take this the standard
by hich TO constrne the STATUTE Is to sac
one Any other would be productive of the create y
ty But for the exertons which made to I,s
any builorg fire, attempte! to BE- set fire could
be said to aoon another for the purposes Of danger
oil the Court was in ao wing The jury define for
themselves the word adjoining with references to dis
lance No two juries would tai nix alike such sub
lance. IL must be observed, too, that this is penal
statute and such to be strictly literally construed
a b. Coma, 225 Mood. 4 Mails 34l; s. c., %; t. Z.
L. r. $50; 8 Gritty CT. Law, 10Th Am. Ed. j li29
The point MADE in the second request Ito the Court
to chGge OF the DEFENDANTS counsel error Book fol
1857 that most proven against the defendant Was
conspiracy between him and Theodore l.. Peversly to
commi. the crime charged With series OF overt acts
taken (Sse also the third fourth, ffth seventh aud
eighth requests fol l6sl6s and remark Of Court at fol
l64l They all depend upon the correctness Of this prn
cpe The refusal Of the Co irt 10 charge these various
requests and Its charges given upon these points we're
erroneous II the principle advanced by the defendants
counsel not correct the very first acthat o! going
to Williamsburg and purchasing the camphene, (as al
Legged by The prosscution) would have mace the felony
complete ALI tine acts OF the accused, or his alleged
complete short OF direct attempt TO fire burn
but the arrangement OF preliminares to tae commits
sion to the attempt to commit the principal act II
this is not taken the correct concluion how is 1t 10
be dete what acts merely overt in pursraocs
IL spracy, and what constitute the fsoni,us at
ttmpt Can Il be said tbs. purchasing the phone
and bringing II into the store OF the accused,
and that the opening of the barrels aud saturstng
the cotton With their contents made the felonou. At
tempt, sg en- 81 "a "a Pp %, .Ss o., TO- "a
quire overt acts to make conspiracy TO commit arson
indetabe; bat overt acts committed they do not
aggrayate the offence The meaning OF the sts'ae Is
that crimes he'noIa that for two more
persons to agree to commit them is msde The
statute defining I" attempts" srd Their punshmsnt,
Goes not initiate with the views the defendsrts
counsel. The true construction Of that statute is,
that the attempt or act must go to tho perpe'rs
arson, the corpus deltcti is the firing or burniag
fire burn. II would be gross misuse Of lauguaSs
10 say that the laying OF the train attempt TO
are GSa n tine ns 30
siry TO ret out the mode or manner In which tho at
tempts made Where it is done however, the allie
9Th Am. ed, 1,I3l.) The essendsut, moreover, was
entitled to his locus pent n.ias between feony and
sdsmesnor and the entire charge OF the court TO the
Jury was calculated TO deprive him OF
s. The Court erred in refusing 70 charge the jury that
building vas actually lie in TIE night time desired
in the sixth reques. OF the DEFENDANTS counsel 90 far
from this i the Court wa right 10 is view. As to what
actually complete In the DAY ttnie-by tie purchase
&c (Bu,ler vs.. The People, Deno's R, 90
POINTS I'M PEOPLE.
Mr. A. Oakley Hall District Attorney, appeared for the
people and submitted that the prisoner was convicted
at the Sessions November 1854 upon indictment under
these statutes viz =" Every person who shall viltuly
act are 10 burn in the night tine, any shop ware
in the drst degree but adjoining to within the cur'
iegs o. any Inhabited dwelling house that sach house
ton BE- saudgeJ guilty OF arson IN the second degree
oar s. orig. ed 6e6; Z :. 4th ed s53; K. part 4
sh s 1T, pF'G 30 "a" ' aaa ii
such attempt shall do any act towards tie commission OF
such offence but shall fall in the perpe ration thereof
shall be prevented intercepted in executing the
Same, upon conviction thereof shall In cases waere no
provision IS made by ia~ for the punishment o. such at
tempt be punished as fel,ns, &C. See r. 5. orig ed
ces 2R s Ash ed, sSl, part 4 ch e. title - His
victon foe attempt a. aron, second degree The
indictment wont TO the jury upon counts J. 2, . 10
arising from the following exceptions the order
Exception Fir,t-GFo "a ITO the decision 0, the
court allowing the acts an crhduct OF Theodore l. Pc
verey co defendant apart from, or IN tbs absence Of
the defendant to be given in evidence against the de-
f.ndant until the prosecution had first eS;a5shed
connect on between them.
Point Firs-lhe court exercised corre-. discretion
in allowing the prosecution TO give evidences 81 the cha
races objected TO- although perhaps little olt o. time
l. The District Attorney az ice time Of the objection,
stated how he would subsequently connect taese acts
and this conduct with the prisoner.
q These scis and this conduct conn sc'sl-bv
showing Theodore TO be the clerk OF the prisoner AMI
residing with him by showing the two ,ed Wade in
company.
q The objected 10 CONTESTED Themselves With the
corpus decfi. The a.ts were purchases OF camphan
and turpentine ard their taking dpad josam dsli- A.
time OF srre. OF prisoner the sae smHled o. the very
goods % which these acts conduct and declarations
lated The acts objected TO we're ns;eral acts towards
the ultimate commission OF TIE offence (as in Ian
ruage OF the aforesaid sta tute touching attempts
Exception Second 10 tie admission oftss; mon! go
ll2 1I regarding bot IL tanning saturated
with eampAens; and 70 tire prorr ETY. OF burning tas
same in presence Ct the jury.
Point Second-This eyiatn.e OF kind for the
Jury serving 20 show lin the and TO tss