The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-10-16

TIE People Against Aid erman Herrick--Days
or Trial Fixed.

BEFORE Judge Roosevelt
oo1oshn i5.-To-day Fixed for the trial OF the
issue Of fact to whether Mr. Carter foreman Of the
0and Jury which found the bills of Indictment against
the Aldermen was or was not resident of the city and
county of New York. A crowd Of witnesses from Flush
ing and elsewhere suhp@nad to testify that
point, and the court crowded with spec.
tators The District Attorney however proposed. In
stead of trying this issue withdraw the replication
which be had filed. and to put in a demurrer, which
sGpy amounted to this that concedny the fact of Mr..
Carriers nonredence in the county to be proven that
circumstance did not inyadste the indictment found by
Grand JooE OF which he was member.
Mr. James Brady argued against the right Of the Dis.
tTict Attorney to resort to this measure.
M. Hall replied. He said it not enough that the
prosecutor came here this morning and substantially ad
mtea me fact claimed by the defence, but now the
defeat al Interior inquiry in,o this imnmteria fact He
had never before heard it d puted that there any
ault to be found with such plea that he put The
sole question Of law which arises is granting tina
authe Grand Jury were residents OF another county
would that invalicate the Indictment What does the
objection meanY The learned gentleman Mr. Brady
had asked for instance of this kind of procedure but
he knows there is nothing more witha Ae discretion OF
the.Court than to permit the withdrawal of record
There 10 question which les beyond this fact and
which s the gentleman vsod it difficult to get over
foreman Of the Grand Jury qualified then stu
would insist the principle that though every
o. that Gi and Jury disqualified still the jury had
been properly organized and the Indictment ia, been
properly formed. The demurrer presents but ques
fence cay in their plea is true stil the indictment
Is good With the status OF the foreman Of that
with the personal Interests involved in the prose,
tutions and he therefore claimed right
that the prosecution should interpose demurrer.
The Court would perceive that matter what may be
tue decision of that plea would resolve itself uto this
What If i be rneY 1t would not invadste the indict
ment He therefore asked the Court to decide that ne
had substantial right to interpose demurrer in the
Mr.. Busted replied to the Disric. Attorney He sug-
gesed That II the Court should hod that the demurrer
to be entered it might become necessary for them to
inlerpose larger Plea OF abatement Believing in the
doctrine that there is such thing as substantial JUS
tce. and that substantial justice requires the rigoY
ofto to be applied to the pro secuon as had been ap
phed to The defence when this question argued before
ami that they should not ne debarred of the right
the issue tried before jury he called the Court
to refuse the entry Of the demurrer.
Jucge Ro0sevelt-This brings up point which oc
cured my mind at earlier stage of the proceedings
namely whether this issue is not inmateral ISSUE
Ave looked into the authorities and ues and devote
much time and attention to this question. will now
state that result in writing. The motion is made
treat this immateria issue.
Nr. Brady beg your Honor's pardon. 1t Is not
treated as an mma eral issue Tie District Attorney
moves for leave to file a demurrer Now, npprehend
that the duty OF the Court ts to decide that motion
alone.
Judge Roosevet-The Court must end these coll ,era
issues
NJ. B.ady-T submit. that your Honor has no right
now to DO more than decide the application Of the Dis
trict Attorney t. file demurrer.
Judge Notwithstanding the fact to be now estab.
he5 that Mr. Carter one OF the Jurors resident,
not OF New York. but OF Queens county The ques is
does that circumstance in the Of the law constitute
svch ceect in the body of the Grand Jury render
indictment found by that Grand Jury null and void?
Mr.. Brady denied that that the question before the
Court he had made no argun cnt upon it. If his Ho
determined that demurrer might be put in, very
well But he had not been heard the point whether
coucesng that Mr. Carter nonresident that would
ciding point on which they had not been heard.
Judge Roosevelt submit to the counsel whether,
assuming the matter stated information and belief
tasen % he true The motion OF the District Attorney did
not lead To this question:
Er Brady-Oh. certainly.
Judge Goosevelt-Ihen there not an argument on
THAT fsct9 What other fact is pleadedg
~. Brady-That Is what am going to call your Hon.
,s =, ips pr M
amned befoe the Grand Jury and that fact con-
ceeed suppose 1t should BE- decided that Mr. Carter
not resident Of this county and still Lad right
Grond Juror, there is another question still whcDhas
cot been argued and that is wheher Mr. Carter such
nonresident had right to admin ter oah2 He sub
mitted bat the Court had right determine tn. me-
rita OF tue demurrer at this point.
Che st DAY that this up arguing on the
hon to quash the indictment, as many law questions
nov sile ION this plea He argued that the matters
stated in the afidavit informato and belief
bs akeu az true it uncontradcted ind there is clause
in the decision Of the Court touching the point of Mr.
Carcrs eligibility TO serve on the Grand Jury. The Dis
ttct Attorney now says he is willing to admit the facts
which you claim and that he puts in demu,re that
thu does not nvalidate the Indictment What further
colse does the district Attorney intend to pursues
Mr. Hail. desire to have the replication withdrawn.
Judge Roose veThcn decide that the District Attor-
ney has right TO withdraw his replication.
Mr. Bady-Then ! ask leave to withdraw my plea of
sbaeuen' and to enlarge it,
Judge Ro0se velt--It il well established rule tn d
atory pleas that they to he held to considerable
stricpese DO not that there thing here to
warrant the granting OF that motion.
Mr.. Hail. now file this demurrer hanaing it to the
: cleFS) aud withdraw my replication. l will pro-
The Coupt-You can state your points with succinct-
ness
Thc People State of Nen Yorl Anson Hrr;ct ndcJ
Nov comes Oakley Hall District Attorney Of The county Of
aan OF the Indictment people against The said Arson
es hat s and
contained and form the same one pleaded and
5 ss iSss
Inc people bound The law Of The land
ne plea s s for Ssn Of ,s s ,4 s
pSays ilni he sid Indictment may adged good that
die SAID Arson h'rfes EGYPT %fsfs
Mr. HaiMr Carter desires to file the minutes oil the
Crand Jury. He has them now here
Mr.. Carter--And will state that they were always
ready to be filed.
Mr. Buseed-we dent want Mr. Carter to make
Mr. Carter did no, desire make speech but thought
that the accused would have liked to have had the trial
MI HALL could but nov repeat the argument which
the other day, and am prepared to read the de-
ciaraon of the court then res odudicdo The points
which submit TO the Court are these
hat Mr. Carter WSs rs $40 o. sa0nsr s
lie persons serving Grand Jurors are sufficiently coupe
Tia, wan, of personal qualification GRAND Juror is
pere breach OF directory statute people va Cook II
Barb. g. , r. ,
That OF the appearance Of Carter according the
Re wss seiscea accordns and that his
selection qualities him TO act.
That the mere disqualification Ia personal view OF the
person administering oath Is nothing and that he be de
iscto qualified II Is sufficient
MI. Brody-As the Court seems to have already made
Up its mind and consulted all the authorities on the
question need not make any argument.
Judge Roosevet-Then can go on and give the deci-
SIGN Which have prepared. He said:-
Assuming the fact to be established it Is ad.
mitted by the application for leave to withdraw
the rep cation and 10 demur in its stead-that Mr..
Carter one OF the jurors although doing business
ia the city was q resident, not OF New York, but Of
Queens county the question Is does that circumstance,
in the eye OF the law constitute such defect In the
body the Grand Jury, Of which he was member, as
10 render this, and every other indictment found by
them null aud voidg The recent act Of June 1858, re-
ia,ing specially and exclusively to this city, pro.
yides fer the mode Of selecting grand jurors, and
des,gnates the qualifications they to possess,
bat II does not inform us unless By Inference, what