The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-12-17
The Case OF CanceYnS.
WRIT OF ERROR Nd STAY OF Ey.fcrr,o'


svrRFXR couRI--seEclAl TEN
Before Hon. Judge Roose'eelt
Caneemi the prisoner was convict ID Of murder not ut
Court of Oyer and Termner, bu. at Circuit. lie
sentenced not by the Circuit bu by general term Of the
Supreme Court His counsel saege various supposed
in the proceedings trial and sentence-some them
Of grave and novel character, and which the Judges
at the general term were divided in opinion. He
asks that the executca of his sentence may stayed
for few days, and. that he may be allowed to carry
his to the Court of Appeals This can only done
IL is supposed, the fiat of Judge of the Supreme
Court and which the Judge may grant withhold accord
ing 10 circumstances. Such undoubtedly the law in
capital prior TO 1865 The subject Of the death Pc
nalt, however had undergone much discussion Its hui
mainly as we'll as its expediency had been vehemently
attacked and as vehemently defended. In States
repeal had been the result In this State the Legislature
adopted compromise measure They gave to prisoners
Oyer and Misunderstanding, of course, the Circuit as
its substituteto the supreme Court, meaning the
neral term, and from the Supreme Court to. the Court
Of Appeals and further safeguard against the pos
sble mistakes Of jurors well Judges, they ex-
trial IL should be satisfied that the verdict against the
prsoner) against the weight Of evidence or against
law or that Justice required trial, whether any
cepton should have been taken not In the court be-
low" claws Of 1855 page 613) The language of other
parts of the act although liable TO technical crit
csm is equally strong "Every conviction for a capital
offence &e, shall be brought before the Supreme Court
and Court Of Appeals &C., by writ of error with
stay Of proceedings as matter of right" Under this
statute, as II seems To me, discretion is left 10 the
Judge. He is absolutely bound when applied to by
any person convicted of capital crime, to issue the
writ and stay the execution. OF what avail would
the writ be if the prisoner should be hung before his
appeal could be heardS To say that he shall have
appeal matter OF right and at the time allow his
life to be taken before he reach the appellate court
would be mere mockery. How man be heard
when dead, and how can mans conviction for an al
legged offence be reviewed on appeal without hearing
Delay and uncertainty in the punishment of great crimes
no doubt encourages their preparation On the other
hand the judicial taking of human life Is and ought to be
matter OF deep soemnity. To weigh these opposing
considerations the province Of the Legislature.
The Legislature have said there "shall ben ap-
peal IT is not for the Judge To say there shall
not In the present case neither the writ of error
nor the stay accompanying it is likely to be attended
with any evil The sentence by its terms, to be
carried out till the 18th of January the appellate court
will assemble ten days before that time. review can,
therefore, be had and final decision obtained in the
erva OF suspension already provided for. The stay
therefore, which is applied for will only be operative in
the event of unforeseen casualty Writ Of allowed
with stay proceedings, till the Court of Appeals shall
otherwise order II i proper should say that this dis
position Of the matter is made with the full of
the presiding Justice who heard the arguments at the
general term.
II is also proper that should say although perhaps
tried Cancemi called upon me just as had finished my
written decision he apparently aborng under great
anxiety Of mind and impressed with deep conviction
that the man is not guilty. He informed me that when
the first jury went out il proposed that they should
ascertain their opinion of his guilt by ballot
for conviction, four for acquitta the other subse-
queDy went 10 the majority, and all know that
the first jury kept together forty eight hours without
coming 10 an agreement.