The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-10-09


Mr. Brady ihcn asked II the District Attorney had aay
afbdavi, III answer TO those he had read.
The ib;iict Attorney said he had not
Ny bhdy then moved, these afiidavits, that the
indictments be anashed and he protested against 10
district Attorney reading any aiays the bject At
any future tsge Of the proceedings He moved TO quash
The indictments the grounds presented In the aiia
v;s-hrs on the ground that the foreman had legal
authority TO act on that grand jury and had right
administer an oafh--se much that he {Mr H. woul
hereafter ccniend that indictment for perjury coul
DC maintained on an oath administered He shoul
con'eni that the secret and malignant prosecutor
Aderman herrick was permitted into the Grand Jury
room illegally 10 asst In the proceedings Of that tribu
ns and 10 influence witness to testify against Alder
man herrick This mott is made to quash the indct
msnt because Il IL supposed that II Il the only mode
correct the irregularities here complained Of The law
points out no her way by which be relieved
irtm this Indictment II Il true q m indictment Is de.
ecyc be can be relieved ana that the Court quash
bat he Of reguarity end ng an indictment the
defendant has no other way but by motion. Counse.
referred to the case OF the People Nevn I HILL 1854
ie9 and 10 the constitutional powers OF grand jures
to show that their doors closed against indi-
v'dunl but The members themselves, and the Dis
hict Attorney himself must withdraw when his duties
before them have been concluded The statute provides
that no consprator shall be permitted to dabble his
hands In the stream OF Justice poiiute that tribunal
win hs presence Mr. B. went on at great length to
contend that thore other way of obtaining know
ledge Of what occurred in the grand jury ROOM pt
by Information and belief; and when the defendants
prove every word contained in the affidavit Heaven
cl bid that he should be heard to mPugn any
oil the grand jury, when affidavit Of ten lines
would purge them; but In the absence OF any ali.
davit on the other side, he was to presume that
all he had heard was true. II the defendant could
not be heard on such afldaBt he had pre-
sented the grand jury might have been all aliens,
and there was remedy LETT himtheir acts would be
entirely beyond the reach Of the law He referred TO the
cnses Of Lambert fhe People the state Rcke the
State Hagncr 1s Gcenlcaf 31i and in referring
Whnrt0ns Criminal Law l20 Dir. Brady faid that the
want Of qualification OF tho foreman Of the Grand Jury ia
conclusive reason fer quasbng the indictment, The
district Attorney had said that it acandalous for Al
denan Herick 70 charge In his affidavit that his mag
nant and personal foe admitd into the QsRnd Jury
room but what business had he orr Wood thec Can
Il be pretended that he a wfnessy Who made the
Mayor of New York the cia adviser Of the Grand JuryY
Were the defendants charging thing against the Mayor
rnest Mr. Warinc in the tr and Jury room he r rady)
asserted that it was against the constitution and the law
OF The land and If he expected to get decent petty Jury
in New York to sanction such course he would find his
dissl continent ms deep as HIS malice.
MI Whiting, behalf Of his client presented aNi-
oayit OF Mr. iykennn similar 10 the others TO the
re- dence OF the foreman Of the Grand Jury
The District Attorney said that In regard to the
@ Mr. ooupeiman m Cooper which had been openei on
ore Of their body TO act as Secretary and that the
minutes shah be delivered TO the District Attorney If the
Grand jury shah direct He (the District Attorney
understood that the Grand Jury, in this case had di
rected the contrary Not obtaining the minutes Of the
Grand Jury be would read another affidavit Of Peter
Friday last Ms. Hall then read the affidavit ia
which Peter faIm said In July last that two days after
cmen- and asked Mr. Cooper he could not get his
use' snnued. Cooper said he could not talk TO him
nvelored In coak Palm spoke TO that man who told
him tLat it would require $500 to get II through the
Coupcilmen.
The aiidavt Of Mayor Wood read by the District At
torney states that he summoned before the Grand
jury az witness; that he had communication with
them except witness and that that was the only
mt he brought before them that questions
atked in reference the Board Of Councmen and that
the qnesti, only in reference to member Of
the beard Of Aldermen The aida Vi, was sworn 10 this
nornirgOctober g. lS55and sets out also that in July
lat e,er aim came before tho Mayor and made the
"a YtfA n4fQ Ql In anti fautfI If IIy last
ihe Mstrict Attorney said that this shows that Mr..
Palm makes affidavit in July which conflicts with tbs
tidbvt made by him in October. 1t would be the very
beigih OF injustice In the absence OF other testimony
q hold indictment such evidence asninst any
upon the Court TO enter no fro'eqf In the Of Mr.
Cooper. he satisfied from the aidavts In the cnse
tia, the tables should be turned--that Palm had not
only attempted to brbe one member OF the Common
Council but several lie moved therefore, that nole
ffosqut be entered aa regards Mr. Cooper.
Mr.. Whiting would prefer that the indictment be
quasLed.
The District Attorney submitted that noye yroseq,i
ON an Indictment IL lasting aud solid act because
when indictment qnashed IL does not prevent
one teirg found but when nole proeg il entered by
officer Of the Court 81 not only concludes that ndict
ment, but any other that may be formed the same
subject matter
1he ncik Jrosegui was then entered.
The District Attorney then replied Ia Mr. Bradys
gment In he Of Alderman Herrick and others He
contended that IL the peculiar province Of the Grand
Jury 10 find indictments against any person in the com
mnniy that their proceedings necessarily secret,
and that the Court had jurisdiction them The
learned counsel had assumed proceedings have
In the jury room which he not capable OF
proving and which certainly ud no, advanced
argument 10 quash indictment. The fact Of Mayor
Wood having feeling .nsi the dcendants-his being
In the jury examining witncssescould not inya
haie be finding Of the Grand Jury who to
discharge their duty between themselves and the people
Judge Roosevelt sadlt Il well untersto ,d that there
are two ,dcs in which complaints presented 20
court and jury. In civil suits between two individuals,
The complaint requires nothing but the signature Of the
party or his subpoena compelling the defendant 20
swer ANA then the Code even II stands, enscts
hat he plant need not be to- Tbs signature
oi the attorney alone would call upon the other side to
defend himself. Then what called criminal suits:
that Is suit whore the people body protest of the
plain,lnin the complaint he presented involving
accusation of felony unless that complaint IL endorsed
by body q men called the "Grand Jary, Of whom at
least twelve must unite endorsed with declaration up
the back II II that II Il true bill And that decla
ration, however 1t must be- borne In mind although
made by body called Jury not In the eye Of ths
not awyera verdict. II not Of necessity i'm
ply that tue accusation ~ true. II implies nothing
not, 10 warrant complaint being Gled, and to
warrant an order process t. compel the accused party
e defend himself That Il all II l. then for the Pott
JBfy--a Jury ~ Twelve men aionc-o determine after
hearing she evidence for the people aud the evidence for
he defence, whether that accusation well founded or
Now when accusation OF this kind presented
IL mny be met has been properly stated by the
fei Tor the accused In various II may be met by
motion 10 set It aside altogether for some ifregulsrty
or for some which does not g 20 trial ~ the
rsh's in other words 10 legal iangnage, motion
ay be made 10 quash the chargenot % try H. but to
BODY improperly organized Grand Jury who
hGd jurisdiction at all. Another proceeding
may be by what is called dilatory plea, a plea
abatement That again does not 20 into the issue. II
does not seek or purpose 10 try the truth aisty Of
he chhrre. That plea IL therefore called Ia Law dila
tory pea-a plea In abatement. Although II is like
motion 70 quash, II Is seinx out 10 form the plea that
th's cnse Il stated In the form Of adavt and the
eim 'abate'' means but little else bat 10 qaash or
mock dosn There IT, however, this important differ
euee In the Of determining that species ~ sus
Sbioh - thus created On motion ~ quash the party
mt Ming sustains himself entirely by affidavit and the
putde prosecutor may meet those snidavis by ahida
Wis up9n lis psrt-upon both sides written state
mepts, drawn up Jor<-nnade by wiinss.e, ~to
ste Jet so b. examined Ia open court, aud
made BY Witnesses, II Is borne In mind who moi Ia
bic 10 subpona 70 compel them to testify who nai,bsr
an 20 compelled b. attend can thoy 10 cfossexAm
nsd by the adverse party. Hence, will be ssso in
monspf, how exceedingly pnsatIsfaetorDy ia tsany
such Iroceecing must BE- where there l. issae
"A TACT between the paresshsre tbsy dhputs th fact
done here. In order "a illustrate u sape<~s the
tact % the rcsdenc. q the foreman a the Gran5 Jury
be matter of npestsnce In this II thst defect
70 h9 Indictment Of Il te onel haa bssa -, Up Il the
g. u plea In sbA;amsni, ssi tho puddle pre-sruior
7..4.a4 49,