New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-08-11
THE CASE OF MRS. CUNNISGnAy{
DECISION OF JUSTICE DAWSON
The Magistrate Refuses to Accept Bail

Yesterday afternoon Justice Dawson delivered the
following decision at the Jefferson Market Police Court
in the case of Mrs. Cunningham who is charged With
felony in fraudulent!y producing pretended heir:
DEcIsIOs.
Fdony-Crou6uentiy producing pretended heir.
Tie People ast Euma A. Burde. otherwise Cunningham
The defendant IN this case ID charged with viola
ton of the Statute against the fraudulent producing oil
pretended heir. I'd II. s., SCI, sec. 81.
That the facts proven before me show probable
cause Of fraudulent exhibition and posse ssion OF u
child, there lie no doubt.
The accused puts on the appearance Of CESSATION,
announces herself with child by DR. Burdel claims to
be bis wife, speaks of its being born to take hA prop
parapheJnaa Of child birth and is found in possession
Of an infant proved to belong exclusively to another
which she exhibits TO tho very officers Of the Law as
her lawful legitimate child, ana as the child vi DE-
Burdell, her husband. -,
do not attach importance to the question wnetner
she was actually with child not as being in auy
way connected with the corpns deicf'. woman
might actually be pregnant aud be delivered OF stu
born child and simultaneously produce fictitious one
as the child of parents under the statute aud yet be
amenabe to Its punishment. The sham pregnancy
and sham delivery are only valuable as strong evi
dences of eloniou INTENT and not OF the essence
Of the crime.
Do these facts come within the statute think
they make out the crime under the Revised Statute
contended for by the District Attorney and tor these
reasOns: The crime consists OF three parts. frst
Fraudulently producing child. Second Falsely
pretepdipc il 10 be bora of parents whose child would
be entitled to any share of personal estate or 20 inne
real estate. Third The intent of thereby Intercept
ing the proper distribution descent of such property
First: TO "produce is defined by Webster, sec.
ond "subdivisiOn'-"T To exhibit to the public, aud
he quotes Swift: " Your parents did not produce you
much into the world" Ii appears to mo the iact'
in evidence show fraudulent exhibiting to the puollc
Of q child.
Second Falsely pretending it to be born of paren.'
whose child would be entitled to share 10 the properly
MI nrx bna fapoa "a
explanation of the legal status Of the child about
which the false pretense is made. Whether there was
actual marriage or not il not material as the essence
this part of the crime is falsely presna IN. ;,;a,
doctrine in the law Of false pretense And In my opln
ion, the fase pretense IL clearly proven by the eU-
dence in this case.
| ton or decent Of snch property. /,
This 10 Q pure legal deduction from facts, and 1
think may fairly be inferred from the facts Al evil
dence.
In the State of New.York to the question u bail,
all felonies including murder are affected " the
same considerations officer b. fore whom the pro.
! ceeding is pending proceeding on tho same legal
grounds in ali cases, tie legal question s-the prop
ability Of appearance for trial as affected 6y the ma.
ture Of the punishment and tho probability OF gult
ard of conviction Of the crime II appearance for
trial lie made In this the crime is Infamous an
punishable to the extent Of ten years imprisonment -
bard labor in the State Prison; aud find the probs'
biltes of guilt overwhelming from the testimony con.
tanned in the deposition before ms-hayng iouud tna'
the offence prohibited by the statute has been S'u,
mtted-I can have legal doubt a. to tue quit ol
defendant and therefore believe it 10 bs my duty 10
commit her without bail. In support OF tbs detsr-
mnation I refer to the recent decision 10 tne
case of the People VS.. Lewis Baker aud Others On
| motion to admit 70 bail COwles, Justice, as repoted
in Howards Practice Reports. Vol. To- lol 800, whsr;
the power and duty of the Court TO sdit TO os l. set
forth a. follows: at seems TO be settled by authority
that the Court will in all cases, capital or oasrwse
" when from the testimony under which the accuses
is held it is indifferent whether he Is innoc'n, oe
| I" guilty. In other Words when upon sn exsmaauon
| " Of the testimony, the presumption Of guilt 10 NOT
strong, and it is particularly called upon 70 os. IN
" ell CAGES where the presumptons are decidedly IA
| 4" favor OF the accused" And again, in folio 81
Justice Cowles says in delivering the opinion Of tbs
| Court: "These principle, were approved By the
Court in the case Of Taylor IS Cow, ?9l, which wa!
case after approving Of the rule laid down by Caei
"Justce Spence, in the case shove cited, Mr.. Chief
"Justce Savage says: If the facts in the case nov
"'btfore the Couis afford the sans presumptions 81
Innocence, and it appears to the Court frosn the
depostiors that IL Is qse iniyent whether he 4
"guilty, then in my opinion be ought 70 he baiied
| 80 0fhertri@ not" ~
IF have ened in my construction Of the Law a. sp
pcsbs 10 this case, or in my Judgment az to tho gull
and conviction Of the defendant, speedy remedy by
rey;ev on Q writ Of ceytioror MAY BE- had
Mr.. Stafford, the counsel Of Mr.. Cunningham, vht
vas prese.t, announced that be should eeioraI til
case. .t- >.
Iux;oe Dsvissn msds out the following commit
meut. ssd plsoed 10 The hssds q IssPsctor piks: