The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-09-16
The Prohlbltory Law.
JUSTICE sTUART's DECISION IN THE CASE OF JAMES
WALLACE.


JUSTICE sTUARTs DECISION IN THE CASE OF JAMES
COURT OF SPECIAL. SESSIONS
Tie Ptople u.s. James Waiace.-The accused is before
this Court upon complaint preferred at the second Dis
tric Police, charging bim with having sold half gill Of
rye whiskey in violation Of the Act for the prevention
oil Intemperance Pauperism and Crime' The case was
returned to the Special Sessions in pursuance of the fol-
lowing section OF the Act enlarge the jurisdiction OF
the Courts General and Special sessions OF the Peace
and for the city and county Of New York the ac
raj Sessions, at the time fixed for him to do
The Court Of General Sessions q he pess 70 and o SIC
mine and PUNISH according to law ali Complaints ior inside
shall exclusive jutsIcion thereof
complaint be The Court Of General Sessions Of he
ns nd S he q he
hereby made the duty Of such magistrate such arrest
the case Was called for trial The eierdaS ap
peared with counsel, Mesrs Tomnson and Taylor and
statute just read gives with the exception therein maGe)
the Court of Special Sessions of the Peace exclusive ju
risdiction of all misdemeanors-and any violation Of
the provisions OF the prohbitory Act, ~ tha de-
claed to be SIT coners power to empannel ury
and as there has been any trials by i in this
Court and clearly cannot be- il is obvi. uy impossible
that the accused be tried at this the ma he
demands In view these facts am asked 10 EXERCISE
the discretion conferred by the Act April L. ana send
he complaint to the Court of General Sessions ana this
required first for the reason that Wallace mi .ook hs
rights and the effect Of his election when before he 90.
lice justi' and second and mostly upon hat
being charged with criminal offence he hs corstitu-
tional right 10 be tried by common law jury OF the
country-such the General Sessions and oyer
miner only have the right to cmpannel further that
he avail himself of that right at any timeevcn
10 the moment the first witness for the people Is sworn,
any act ofthe Legislature the contrary
Mr. Capron OF counsel for the prosecu ion denied pow
to send the into the General Sessions disputed
the right OF the defendant to jury he hav ed under
prescribed These questions having been argued
length by counsel the side and the Obe being
na,h before ant now without any doubts in the matter
the accused being charged with the preparation of
misdemeanor, constitutional right 10 oe ired by
jury-even although the Legislature has otherwise de-
clared-except upon certain conditions, wncn the de-
PENDANT failed to observe, and which, Therefore
now avail hims Art. sec. OF the constitution OF this
State provides that Ihe right OF trial by jury all
in which it has heretofore been used shall remain
involate forever' The simple and only question then
is In what has it heretofore been used That it
has been used in all cases Of felony certain Is it
equally true in respect to misdemeanors, Has il upon
principle by force of law and usage re-
gar ded the settled policy of the State In the admins
traon of its criminal justice that msdemeauers we'll
felones should be subjects OF trial by uiiea prac
tce by specai local courts to the contrary being
ceptions TO the ruler BY reference from present to
that section % of article It'll is the The section
have read from The present organic laws of the State
and inhabitants of this State" known as the Bill of |
Rights" passed in 1871 declaratory Of certain funia
dea Ss and
compilation from these and from an ana
ing the rights of the citizens Of this State conans
only provision the present and
preceding constitutions but still another section touch
ing the right of trial by jury, which is in the following
light TO speedy and public trial by partial ary"
Gee. IA The argument that this bin Of rights Is out
of the legislature, and may be affected by ny subse
quent act is admitted but answered by the fact that in
It's import essence and spirit it is infinitely more mpor
an', sacred and enduring, than any other being the
solemn recognition by the Legislature Of those great
ony @ he o. a
ment. Passing to the first constitution oil the State
1717) we find the fortydrst section TO be ia these
And his ranfin turfh Ma
that trial by jury in all in which it hs heretofore
been used in this colony of New York shall remain nvio
the subject, it will be found that in 1874 was
passed entitled IAN Act for the speedy Furnishing and
nit any criminal offence IN the city and county Of New
York under the decree Of grand larceny This act au-
the Mayer Recorder p and @dermen snd may ,' with
the justification, p perhaps that t.. measure Of the
regarded as the organization of the present Court
OF Special Sessions in this city II wa Instituted
and has ever since been CONTINUED, out Of ne
cessity TO give speedy trials and " jai teiiyesance
The great number Of petty offenders whose detention
for indictment, and the slower mode OF trial BY jury
woald crowd the prisons that many would need
10 be discharged without any trial whatever II is here
remarked that this Act-and let It he observed
100 that all subsequent Acts for the trial petty
offenders without Juy-was. and have always been, foI
the trial Of those who were found in pdson, unwl
ling unable to give bail, and not or the petit
offenders who out Of prison bail subject to b
tried as time and circumstances would permit-ethe1
in the Special Sessions II it their choice, and
otherwise. in General SESSIONS, according the
course of the common Law, where they could be com
OF April last has the Legislature made it obligatory,
der any circumstances for persons upon bail 10 be te
is required while the recognizance into which the
enter is for their appearances at the General Session
them ha Wanes r ee be
fore the Police Justice In the sum Of $500 that
would appear and answer to any indictment upon th
indeed there is no law authorizing the committing
magistrate to let TO bail for appearance answer
any other Court. How, II he refuses the
he forced to at the Special SESSIONS? Tn
question, especially challenged by the defence
whether from any cause-in prison upon bail
accused party be tried by single Judge notwth
standing he at the time he required 60 upon hi
trial protests against the exercise of h authority
demands that bis guilt Innocence shall be found by
jury: do not think he can, but may at any time Ian
to be tried by jury and II refused and tried by tn
Court against his wilt, he can appeal from Judgment
guilty TO the General Sessions Not only is this the la
Of the land upon principle and constitutional right bu
in this city that they have secured by statute Sec
tions 2sth and 2eth ofartce . title Cd, part 4h
vol Revised Statutes provides in treating .of Courts
Special Sessions in she city and county Of New York
that sny pei tried and sentenced according III
provisions OF this article without having demanded
trial may appeal from such sentence to the Court
General Sessions in the city and county OF View York
and further that such appeal must be made at the tim
the sentence is prononnced and hereupon such convi
ton sha he void" know very well that Courts OF p'
cia Sessions in counties of this state other than u
city and county Of New York, have the power to cmpa
mel jures Of six, but not OF twelve persons bat this
not common law or constitutional jury and citize
accused Of crime whether in this any other county
the State is bound to be tried by jury of an
number less than twelve, than he by three justices
the peace or single judge; he may refuse all, b
can, al his will, be tried by either. In recer
opinion of Judge Parker, at Albany In The case
Kennedy, he in the consideration Of this subject
the following language-I Is declared by the constit,
ton OF this State, (art. L. ~ " The trial by jury,
all which il has been heretofore used shall
nvolate for ever" The obvious meaning Of the EXPIRE
zion heretofore uscdi' is, in al the time Of q
adoption OF the Constitution What is meant by II
expression, 'trial by jury" Does It mean comm
law jury Of twelve men jury OF six men a. provid
in trial at Special Sessions think there can be
doubt on this point. II the Legislature nay reduce
jury In number 10 fix, they have the right to
duce the number to one, and thus make jury OF
compliance with the requirement Of the Constitution
this subject the Court Of Appeals have recently express
opinion In Cruger The Hudson River Raro
Company q Herman T., 1857 johnson j., says: . Tn
term q jury wien spoken Of in connection With trial
iurY In the second secton Of the rticle importa