The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-07-11

! The Caacsmt Case.
NOTIONS AND REASONS Foe ARsssT OF JUDGMENT
| AND FOR NEW rRIAL-rHE CASE STANDS
ADJOURNED.
SUPREME CoUar-0ENERAL TERN.
| Before Hon. Judgee Davies, Wright, lasrahsm srt
| Sutherland.
July l0--The People Us. Michael Cancemi =
Mr.. McKeon, Acting District Attorney, associated
with Attorney General Tremaine and Mr.. A. A. Phil
lips, counsel for the people, produced the posted
from the Circuit Court, where the prisoner was con
| victed of the murder of Eugene Anderson, and
moved the Judgment of the Court.
Mr.. Ashmead said there were some reasons why
an arrest of Judgment should be made and a new
trial granted. The counsel for the prosecution had
| made up the bill of exceptions in a form TO which
the prisoners counsel could not agree and the ques
ton was whether the Court would proceed until tn
| bill was settled.
The Attorney General hoped there would be no
further delay in the sentence OF the Court; it Is no
necessary that the sentence should be delayed unit
| the bill Of exceptions is settled, and the Cour
would see the necessity Of this course because,
the Court came to the conclusion to give the pri-
soner new trial they certainly would not then SEN
| tence him.
Mr.. Ashmead said that Judge Mitchell and
this Court had decided quite the contrary. Judge
Mitchell refused to pass sentence until the bill Of
exceptions was settled.
| The Court understood it to be their duty on the
production of the postea to call the prisoner up for
| sentence The Court decided that, in accordance
with the decision Of the Court of Appeals in the case
of Rulock the bill OF exceptions was not to be argued
at present.
Mr.. Blankman excepted to the ruling
Mr.. Ashmead said that the counsel for the prose
cuton should produce the record Of the court where
the conviction took place. well as the postea. The
posteG is the endorsement OF the Judge on the nts
by the record but they could amend the record
by the posted. The record was not produced here,
and he commended that it cessary to have it In
| court. He cited several authorities.
| Judge Davies remarked that the same objection
| was made on the former motion for new trial. and
| was overruled.
Judge Wright remarked that, in legal parlance,
| there was no such thing as record in the Circuit
Court.
/ The Attorney General said that the case comes
here on all the records that there in the matter
the posted the certiorari and the Judges minutes
| and he saw no reason in anything that had been
suggested why this solemn ceremony before the
| Court should be trltled with.
The Court decided that the sentence should be
passed before the argument is heard on the bill Of
| exceptions.
Mr.. Ashmead hoped that the decision might ap
| pear on the minutes of the Court. As Emmett said
| to Lord Norbury-" We insist on the forms being
gone through, even though we may be impatient FOL
the sacrifice"
Mr. Blankman then proceeded to move for an ar
| rest of Judgment, on the following points:
First-That it does not appear from the posted
that any verdict whatever was rendered to Jurors
who were empannelled to try the defendant.
Second-Tbst it does not appear that the twelve
Jurors who were sworn to try the defendant, any
OF them have rendered any verdict upon the issue
they were sworn to try.
Ihird-That it does not appear that the defend
ant was present in Court when the verdict of the
Jury was rendered if any verdict was ever rendered
| by said jury or any of them.
Fourth-That no judgment can be pronounced
upon the defendant neither the record nor the posted
| showing that the defendant was convicted OF the
offence charged against him by the verdict OF the
jury sworn N try him. -.
points did not torn any reason why the Judgment
should be arrested. They did not think it necessary
| to hear the Attorney General.
Mr.. Asnmead wished to be heard.
The Attorney General thought that argument was
scarcely necessary after the decision Of the Court
particularly ON such hot day as this.
The Court said they would bear Mr.. Ashmead Il
he desired it.
Mr.. Ashmead was proceeding TO say that be was
happy that hitherto be had been spared such scene
| as was exhibited here by the counsel
| The Court interrupted Mr.. Ashmead, and said
| that they could not permit any personal remarks
between counsel; they should simply conane them.
selves to the matter before the Court, and avoid all
| personal illusions
| Mr.. Ashmead desired to know IL he would not be
permitted 10 comment on the course pursued by the
opposite counsel in case where the issue Is blood
Had he not an undoubted right 70 remark upon their
conduct when the whole affair appeared more Ike
private prosecution than an effort 20 administer jus
| lice in legal and proper mannerI
The Court-No, not here, sir.
Mr.. Ashmead then proceeded 10 argue on the
points submitted by Mr.. Bankman. He contended
| Capcem was in court the first day OF the trial;
| IL should say that he was In court during the
whole Of the trial; and when the verdict was
rendered 1t did not say that the jury rem
dered any verdict, but simply named certain
jurors and then il goes on SAY and give verdict"
but IL does not say who gave verdict. IL should say
1.-THE jurors aforesaid Such apostea would not stand
the scrutiny Of the Crown lawyers OF England. nor
would the English judges pass sentence upon such
document. II the prisoner were sentenced and exc
cuted on that posted he would be sentenced a re-
| cord which did not show that he was convicted.
| After some further remarks from Mr.. Ashmead,
The Court adhered TO their former decision that
the points raised we're not suicien. 70 warrant
arrest Of Judgment.
Mr. Blankman then moved 20 amend the postea by
introducing into IL the stipulation entered into be-
claimed that the common law required that all the
facts should be stated in the posfea.
The Attorney General raised preliminary objec-
tons: First that prisoners counsel should have had
a written notice Of The motion, and next that this
Court could not dictate 20 the Circuit Judge the form
in which be should send in the postea.
Mr. Bankman proceeded with his argument, and
proposed TO read an affidavit Of the prisoner.
The Attorney General was heard at considerable
length in opposition and cited Newton against Har.
land 10 show that IL there was any amendment to
the posfso necessary IL must be moved before the
Circuit Judge He defended the prosecution in their
course and In their motion for sentence. This man
had been twice convicted, and had had long
time allowed him before sentence; besides this
he had his voluminous bill Of exceptions printed at
the expense of the county. He contended that the
affidavit should not be admitted IL would be pre-
posarous to permit the affidavit Of convicted felon
TO be read 70 contradict the postea Of the Circuit
Court.
Mr.. Bankman, in reply, contended tha. the
law Of the land required that man should
be tried by twelve Of his peers. He cited authorities
where the English judges decided that nobeman
could not waive his rights, and that instead
of being tried by commoDers be should have been
tried by his peers. He also referred to the seventh
and eighth sections OF the bill OF rights in the first
volume OF the Revised Statutes, TO show that IL
boil In sl,att n