New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-08-13

s 1919 hiele se7e'"'4' VIA" VOID isse
The Court inquired wbs. could be The rrs,rr,,..
Of intent in this case, under the cFcums.srSes ~.
forth IN the stfdayis. There was preterse De, Is
child was born Of her and ,hst X VS. .be sr.ws.
child of Harvey Burdell and he though. hsl p,t a.
the statute was met; j. only rcmaireiso shov Wa
must in lsw be regarded as the in:ent Of ne rro-
ducton. She must lave bad some obie1, ard vsrnis
no, the conclusion OF the law be that SIZE rtenSsSs
yiols,e the statute IN some way
Mr. Stafford couterjsd thst such iuter. co,,a -,
legally be inferred from her mere dcaa1ons bu. ths
Court ad there were acis cacussed to give color 10
the declarations. There was The preteuss al rsssr,
Childbirth, &c. He thought that doctrine would a.
prive Mrs. CUNNINGHAM oi the space e r.per,srse
which the law always SLOWED.
The Court said she had proceeded far enough b,
furnish G, dence that she gave birth 10 tie cLid md
that coupled with proof OF marriage TO Dr. Brnel.
would suffice 10 make good clsim to the estate.
Mr. Stafford said that showed the necessity Of presf
10 the marriage.
The Judge remarked that lie wss assan,.us the
marriage TO be established beyond peradventure.
Mr. Stafford said that positive PROOF OF the marriage
did not exist in the
The Court said il amounted to the same sGirg wh.-
Their she was married TO Burlc or rot. He referred
TO a remarkable case OF simulated psr'GritIon IN
France, by the continuance Of lawful wife ard hus-
band, who desired 10 have an beir. The child was
born of another woman lying beneath the pretended
mother. In after years the iand was discovered aud
the woman punished.
Mr. Stafford said there still the difference, ths;
Mr. Hall called the counsel. attention to the fact
that no witness was in court when she produced her
marriage certificate.
The Judce thought that she had at leaet laid the
foundation of clime, and even 10 the lghtin which
Mr. Stafford presented the case, It was the duly Of the
committing magistrate to commit he.. Ii the case
were before him as a committing magistrate he would
have felt it his duty to commit even on the parts OF
afidayits the counsel had Just read.
Mr. Stafford then passed TO the question OF ball..
Dir. Hal called attention to the statute p'oviaing ,oa.
in criminal cases the amount OF bill shall be hxed
only by the tribunal having isdiction OF the onense
Mr. Stafford quoted other statutes, and there was con-
iderable discussion on the subject.
Mr.. Stafford said he would make the motion DC noro
that she be admitted to bail in the same way as II the
indictment had been handed in 10 the Court OF Ses'
sions. He quoted the statutes under which he be-
ieyed the Court had tight 10 admit her 10 bail. The
Judge conceived that 70 are dment was necessary on
this motion as he Of opinion thst under the cir
Gums snces would have been improper for the com
hitting magistrate to allow bail Inc following order
d'schargipg the ccrtiOr0I1 was made
ORDER DrscHAsGE.
Upon the return Of the within and tho dero.ors aud
commitment being produced by virtue thereof snf being n
ted an, %, s. a. : Hs bAL
Augud ~ lsJ'
The following are the points prepared by District
Attorney Hail. in anticipation Of argument on the writ,
which the decision of the Judge rendered unnecessary
POINTS FOR THE PEOPLE.
evidence adjudged thet felony has been committed,
and that no reasonable doubt Of the dsfesdans guilt
arising upon tho facts uncer troverted in testimony by
her, bail should be refused:
mitment and the papers embedying the evidence new
brought up by cerorar should dismiss the writ, aud
leave the custody as it now is and without bail.
The commitment being on charge OF felony, the
rue il general not to say universal, that unless the
case appear on the dispositions to be very doubtful
one the prisoner cannot be let to bail though the
crime be not capital. tllils Essay on Hab. Corp,
Hill, 6.2 Cow. 3y. tx pane isy'Vs ,ot sor ma ~.
felony now alleged against Mrs. Burdell) says Mr..
Hill in his invaluable essay:
"The rule in Tayl0es case 10 IN tu1 accordance
with the sprit in which punishMents have been mit-
gated by our criminal code. The principle undoubt.
edy was that while the amount OF punishment was 70.
duced the certainty of its nfiicon, at least should
not be diminished The crime there charged ana the
punishment though not capital, were stiil infamous;
and in such cases. where reasonable doubt Of guilt
arises upon the evidence, it is impossible for the Court
10 Say what pecuniary forfeiture will compensate the
bends not only the Individual case, but the interests
which large community have in the faithful execution
the criminal law. Vigilance and certainty in this
aspect can alone insure public safety and tranquility
Lastly, while it brings the administration Of justc.
INTO contempt it is sure to result in the greatest Of
ial evis-the indscrminste punis hment Of guilt and
innocence at the hands Of the Infatuated multitude"
These latter words of Mr.. Hill deserve 10 be- written
tablets of gold and placed in every Office OF every
magistrate in this city. They were written in 1872
ind prophetic Of 1851.
1t has been very curious popular error that in all
cases of felony below murder bail was q matter Vi
cOurGe.
Now, did the magistrate in his estimate OF the
strong probabilities Of guilt
The accused for months past feigaed pregnancy.
At first deceived Uh and Catlin her doctors.
She urges probable heirship before SulTogae.-Tes.
tmony OF Bulen.
She prepares baby clothes.-Te Testimony Of her
daughters.
Tfetends actual deliyery--Dr. Cstlin-testnony
Of Mrs. Barnes and Wilt-and exhibits child o. her
own to the former.
Now these evidences of her own, and not shared
by the authorities
The inference Of law is that when Q woman pro.
duces infant her after fegned CESSATION, az
ter claim to heiIshp in pubic cOurt that she ha, Al
int Mt of fraudulent nature The statute makes this,
which would have been fraud at common law,
felony. Then take the other evidences which were
shared by the authorities.
II is idle to cay she was led into crime. Sss hal
received upon it, and taken many overt acts .as ~
appears long before the authorities knew Of r.
From her character and sill persistence in her inno-
cence (see her examnation-not in silence, which
the law allows but in direct asser0n, 1t Is fair tn
pre- sumo that she would have obtained her evidences
Of crime elsewhere. She sends after marked child
clerk is seen to take marked bill aftcr Suspicion
points 10 him-produces 1t no her own. She falsely
pr.tends by thousand little acts, as well a. few
strong WORDS that it is the child Vt Burde and of her.
SELF Now if II was, the law, without her assertion.
instantly on its birth, invests il with hership IL rs
formally proven the putatye father left property, &C.
Ties. tf Bulen and Pub. Adm.
Now, here IL q woman taken in fog,awe deltcto
giving DO explanation. and tho circumstances exist
such to allow the law first cited TO be applied, and
to dsmss the writ A. OAKEY HALL, for the People.
RECORDER SMITH REFUSES TO BAIL MRS. CUNNING
HAN. -
A short time before the adjournment OF inc uenei1
Sessions Yesterday William X. Stafford, counsel tor
Mrs Cunningham in the issues and trials growing ous
Of The late Bt nd sireet affair, appeared before Re-.
oorder Smith, and offered mouoh tont MS honor