New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-10-10
La W'LNIE,LLIGENCE


COURT Or OYER AND TERMINER -ocr. s-Bsfo's
Judge ROOSEVELT.
CASE OF AID HERRIcK AND OTHERS, OF INDICTMENTS.
Tho Judge remarked that be had, since yesterday.
considered the question presented and bis conclusions
do net differ from wha, he had already expressed.
He had place however, his views in writing.
The Judge read his opinion, which Is similar to
that stated yesterday. Where the facts are oontro-
yerted or as in this case, not admitted motion 10
quash is inadequate, the court cannot receive tes
mony in regard t. II. plea of abatement Is the only
mode ard that only be on affidavit or some other
evidence. How can the court then admit an affidavit
merely from information and belief that the foreman
of the Grand Jury Is not resident when IN opposi-
ton to il he stends the regular returned Juror, Sc.f
The aw says that the persons on the list OF grandu-
rors shall be those impanneled.
As to allowing the presence and interference OF
Mayor Wood in the Grand-Jury room the district
attorney Gays he the person present and not tho
mayor. But suppose it was the latter. The mayor
was there a. q witness when the other witness, War
ing came in and expressed unwillingness to tes-
tify. when the mayor, il IL he and not the dis
trict.attorney, took up book AID read the law TO
him and he testified. The Bribery Act OF 1888 says
person shall testify but his testimony shsll not crn
nate himself II is said the law 10 unconstitutional.
Put cannot Oh II mere motion undertake to say
statute is unconstitutional. IL Warng teshned "a
Tor the authorities to that his testimony shs nos
be taken TO operate against himself and l, win 10
time enough to consider that when the party himeli.
ard not third persons, makes application to that effect
the motion to quash on either ground mh"o oen'ed'
PLEA IN ABATEMENT.
Mr.. Brady read the plea in abatement of Aid. Her
rick which asks that the indie ment may be quashed,
on the ground that when Waring gave evidence be
fire the grand jury the foreman thereof, Luther C.
CATER was not resident of the city Of New York,
Dor had he at any time within two years Of the finding
of said Indictment been assessed 5000 in sid city Of
New. York on HE personal property, an e is not oil
pible and also that the Indictment was found, ocn-
trar, to law without the said Herrick having been
Informed or knowing that any complaint had been
made against him. go .
read stating that Luther c. Carter il resident OF SAID
town, and he (PopeD supplied his family with meat.
Another afidayit-of Mr.. Turner Of Fiushing-also
states that Mr. Carter s a resident OF Fluslhns .,
An affidavit. Of Mr.. Bager OF New Yorx also stated
that Mr. Cater is a resident of Flushing; Opponent
knew when be left his 20 q house In the Eighteenth
ward to reside at Flushing, and he has since tod de-
ponent he did not intend 10 return TO New.fork aus
sad Luther c. Garter is the same that acted as fore-
msp at the grant jury in sald city. a.,
The district attorney said that although he woad
rot admit the entire regularity Of the plea, ne would
not take vansge Of any techneahty, 90 well salts
fed is he tDst he will be able TO sheg the entire egi.
bify Of Mr.. Carter to act as foreman Of the grand
iury-aLd be would, therefore, merely put 10 fepli-
cation and preseD testimony the point which can
be done la ter minutes, should the counsel DO reaoy I'd
COON. .,- -.
the dstlictatoney, accordingly, "a. down WHO
view 10 drawing II up
The attorney then read the answer. stating
that the aes etoIs in the plea are untrue that ssia
LutherC Garter ineligible TO serve and asked thai
tie o,ion lie seLie and the issue Inquired OF by inc
codt.
Mr Brady sad they have now the matter IN shape
in which testimony can be taken. lie thougnt, now.
ever differing from the court, that the Judge had
power, the former notion 70 SUNNI ue n''e' ."
reference.
The Judge referred TO the answer ~ wishing the
issue TO be inquired of by tbs court. Mr. Brady sad
that is mistake Of The district attorney i must be
tired by Jury The district attorney said there was no
rule BY which pleas in abatement can be tried by any
other Than the court. II do 80 by oral testimony
or by affidavit a. il msy see it He would ask that
time be fixed.
be TIED by jury: whether thai applies to tue crin.
nal law or not he certain. u proper TO guard
az sibst diatory pless. He would ask wat course
The district attorney would propose 10 take. ;,
The district attorney replied t2et the court would
have riQht 20 summon Witnesses before It. rhe
iucge sad IN a at ecia Term, be bad examlned
Witnesses, and tie case on that account was 49,
up on appeal to the General Term, ana tne P'nc'P,e
affirmed. IL was further appealed tom, ana Is noN
.fo,e the Court Of Appeals; so that even the isnt
nndfr the code has been denied la regard TO crimi:
nal proceedings the counsel the Jucge ssid, one OF
whom Mr.. WbitingD was distiictstomey TOR sons
y,srg. and smother 10 now, are probably more con-
yeysant with the rule az this court does not often
have 10 consider criminal law.
Mr.. Wiling thought in every indictment iof ie.ony,
a pea in abatement must be tired ~ lmy, ena
usually ied al the same term on shch the inoicsn
l. tried In ans yer 10 the cstnctauorney 70
vbethe, he ever so tried q plea IN abatement, Mr..
Willing remarked that during the six years IN which
he was district attorney, no plea in abatement had
-, n,e.er.a6 bat be would say he had been re-
oue.td in hundred cases by tie grand jury TO draw
No bin OF indictment where no bill ever was drssn
The Judge said plea in sbsiement. unless where
il mere question Of law, rnust be, thought, DO tired
by jury. You cannot Try 40 issue By affidavit; the
parties hsve right TO zee the witnesses. .
The district attorney said he would sdnit toe ".
uses must be present but before DE coun. ~ ~
jutge inqui ed OF the ds'rictsttorney II be knew
ssiDgle csse in which plea bad been trsd' A..
The dstrict-Atiorney replied that ne Soos nom
full Of such instances and he would ges o~"~ ""'
his Office and show instances TO the court A.. h;.s
TIE district attorney returned sAd ssd IN ''' "''