New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-10-23
La " NThLLIG ENCE
TUE CANCEMI CASE.
DECISION or THE COURT OF APPFALS-IHF PITS.
)NER TO HAVE 4 NEW TRIAL.
COURT OF APPEALS.

Mohasi Cance plaintiff The Peop'r def,nial,,
in erIOl.
By THE CoURT-SrRoSG, J.-Tle return TO the writ
Of IN this contains formal ord Of judy
ment setting forth indictment sganst tie plaintiff
in errOr in the Court Of General Sessions OF the Peace
il the City and County Of NewYork for the crime Of
murder; tie plea Of tie plaintiff in error traversng
TIE Indictment; the removal of the Indictment into the
Court Of Oyer and L, rner of said City and County,
and subsequently into the Supreme Court; the p0sfca
or certificate Of the Justice who held the Circuit Court
al ,rlch the trial Of the indictment wac by General
Term Of The Supreme Court in the ls Judicial Dis
tict, ordered 70 take place, and had the proceed
irgs at the trial. slowing .lst verdict of guilty
rendered, ALI tie judgment OF the Supreme Court at
General Term ia said district sentencing tie plaintiff
in error TO the punishment OF death. This record i
signed bv the four Justices Of the Supreme Court be-
fore whom, II Is stated in the record the General
Tenn was held at which tine judgment was given.
bill of exceptions, setting forth portions Of the es-
mOpy, and several exceptions to rulings at me tral
upon questions Of evidence, is also embraced III the
return which, It is conceded tue part Of the peo-
pie is to be regarded paf of the record, and, a.
such TO be properly before the Court. The postea
embraced in the formal record Of Judgment, As above
stated shows that twelve Jurors, whose names are
given. were duly chosen, sworn, and empanneled 10
Try the udic.n cnt and af.orgard, on specified day
the trial having been begun and duly continued 10
that day. rendered their verdict The bill of excep-
tions states that tie trial before the Justice hold
ing Circuit Court and jury thereof, called, empan-
need and sWorB and that the jury found the prisoner
guilty Of the murder charged in the indictment.
n ADDITION Ia the matters above mentioned, the re-
urp 10 the writ Of error includes Il certificate of the
Justice before whom the Circuit Court, Gt which the
Indictment was tried was held stating TO the Supreme
Court that after tie Jury had been mpanneed ami
sworn and the trial % the prisoner commenced, Sup
uson con- et and agreement hf prisoner bis counsel sud
behalf OF the 10 tht ftIutdF,
presented 20 the Court, aud tire juror Frederick lhr
was wtldragn BY ne pfes elgest ara eoI,t OIL e Pr
ulation j. utNt - fora At length win s5telett iai p
handed 10 te Count aId ordered o. e ana lt ne au re-
euck Muller permitted 70 withdraw from the lHfyblN
fo.oEuG me ,eileiie ana '"pHa,on aio @ tia &.
stated 10 have been lied n arrest oi nasien "ou. "o ~
that sIpeas by he aid certificate, AID me pap-Is aueNd
Jury an1 that the verdict Wa rendered by eleven Juror only
wlh Is stated after argument overrurd oy 90.
filed hch given in j. being tie exclusion Of evil
arise upon the bill q exceptions aud which reasons is stated
were subsequently arg ed and oyerruled.
TIE proceedings the arragpueut Of the plaintiff in error
WHY judgment should not be pronounced against hun TIA, he
Constitution z: by eleven jurors and no. Twelve ana ha; he
the request aid ~ the benefit Of the plaintiff in an1 that
twas his request tie tFal proceeded with the remaining
An or3er ofhe supreme Court Special Term in the frs:
reces the Aforesaid certificate IN reiense 70 TIE withdrawal
OF juror and states mat me Dene5Si Iea 9faeied tns tH
a.t of vssnent made by the prisoner this ground
Tor tie ,ootior IN arrest Of G.nent should therefore be
added in the fim In which appears which hc order
proceeds follows The motion 20 add 70 the record IN this
the in arrest Of Judgment is thus amsndedl ad
also the trial and also The proceedings on he
srraist Of the prisoner r & granted and ths
be the record and BE- certified
by CLERK. ier ordered tia cerded copy of this
Tie principal ground relied on il the case appear,
only BY that portion Of the retuu W. additional - the
forms record of judgment and the Bill Of excepous a-d Is
cseS M by the VII, II error and va ipertr
q
therefore OF The outset. 20 deteu the question,
whether ,h matter egaly before Court aud BE-
gsgded connection with lie ledse Of the retu In eNan-
ig AID deciding IN the
The Revised Satute vel IA p in article relating
to wits judgments in criminal cases. provide thar
upon any writ Of eens hed hch ball operate stay
case hall BE- the duty of the Clerk Of the Court TO
hi and ea Of thr Court, certified
by clerk thereof" Ii i. further provided by rs that no
such osc bat the Court shall proceed return thereto
AID render judgmn; upon tie record before them l. IN
returned his case but VIA, particularly sIcc
that be Court must give judgment the return only so far
in sccordfnce with that section ds!egsrding thing else
which il contains. We think Of the
,on Of errors which tie sections relate. appearing II
lire .rcons proper subjects Of writ and that such
not their erect. Jus e,ui IS ~, y .s m P'
correct snd redress al error, max nave s peneo OF ~ s
, ir The irene Court" Il Laws OF 1871 Sal Is and tie
ks,sS sai1 e,isa 1p D ss 5 aee!ars TIA, eer,o
.r To- CERTIFY dilLtOn variance or other detect IN any
record prOcee1ifE nay De ssuea ~ tne SpuIt 20 WI
eut ch writ be brought and shall se served on clerk
b.o and shall DE- returned by him according 70 the comm al
mr. Til, section spT-aIs 10 BE- applied 10 criminal
well A. civil IL forms par OF lite prescribing ne pro
and ma .ce he provisions
uhch IL IL esp..,iy declared, shall not extend 10 wT Of
rTor brorh UPON shy judgment rendered uon any rdte
IN si Ssi sr.by showing rke other provisions ap
,is rra! rases far they csn properly be sppl-d
and are IN harmony with o,her par,s Of the statute
;.ii n, nh cs.e, We think the prescribing
IL Contents ii the return be made ~ the clerk IN criminal
50. 80 tie Court shall priced un tcAi fc
$50, 49, r,d~ dsueut the record before them does not
% r. cefel power Of the Court 70 correct and redress al
errors AID for that purpose TO trns before 'oen