The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-06-28

assocsse, and wher for augh, know he may have q.
saiieo ycus Honor behind yocr beck cen nov under
star Why learned friend sho prosecuted Wilkes then
Is Iow here a council 10 Interrupt ne when beg your
Holort a tentiop 70 his character.
NJ, Whiting iappea, to your Honor against this attack
sr. HAIL have cropped the suNjec,
hr. whimg-Yes, alter you exhausted IL. Counsel
Presented 10 the consideration OF the Court HIS other
points might be proper the trial Of the Indictment but
Tbs Reoorder-In the eye Of the law Mr.. wilkes is as
credible 80 any other mar.
Mr HABIT your Horror thinks 30 amer his rbs,liug
your associate, have TO objection; but can only say
that cur Botor 10 a kinder hearted man than am.
The Recorser-Ltgaly and in court am kind hearted
man
TnB LAW AND The FACTS.
Mr. HallYcrr Honor has before you these Irregular.
ties sno ia Jcr ycur Hovor 70 say whether You viii toe
rste such irregularities In the initiation OF Indictment
The snAss. offence known TO the law It will not be
cepied that this hole thrg shows that Judge Russell
so'ea in nsgissr'ai capacity and brought himself
% oosis or out Of ooar. acting in an ec. eapsoy'
exceeds jurisdiction, he is not amenabe. Your
sstc WHO indicted for ret gorg to RIOT and your
Honor will find 10 that the authorities to show that
Judge may go 10 TIE scene Of Iiot on affidavit and may
order the afreet OF perscns on mere verbal warrant
Mr.. Whiirg-Thai Jroge may goS
Mr. Ha-A magistrate and Judge Russell possesses
cot sor Ee coSin rot 20 a. Judge, Because he ia not
Judge shile outsof court, but he could 60 as msgis
tste Justice Duer for Instance s Judge but not ma
The Recorder Was there any warrant against wllkeAs
Mr.. hall Certainly
Mr.. woii.ne--Ntver.
Nr. Han-nr WIVES was arrested on the verbal war
rant Of Judge Russell We take the point that the
verbal command Of magistrate who is present at tho
scene CT oi,trrbance enough TO legaze tie arrest OF
the party. Will the officer bring me " Archeoids Re-
ports, Waters eoton.
Mr.. Ehiting-Iced. Qaugt,erl
Mr.. Hall-fais is q mcticr addressed to the dscre-
ton OF tue Court, and that discretion has been
always found to take . very wide range
In l.ra s1., H..,-
not lork behind the Indictment but here is tr
vial eence Ike assault battery Is for the Court
ssy whe rer will not consider irregularities that ought
The Recorder GU look at that point, whether two
cife'er indictments car be found for offences gro wing
out Of the sere transaction?
Mr.. Hai'--My learned associate has that question on
bis brief Your Hi will perceive that if be con seded
that Judge eusse ha1 right to warrant for the
arrest d psrce-wfes and Darce being there together
be bad 'snt 10 order the arrest and removaof Wilkes
tie Recorder-Tnere can be no question OF that
Judge Russell baG the right TO issue his warrant, beug
responsible FOR u civil or CRIMINAL action.
Mr. Hsii-fes; for Impeachment or misbehavlour in
oee Your Honor viii also perceive inst Eshese three
there'tIe for Honor under ,es
exercise your cescteuou rs to ouasbing them.
The Recordt THE three Indictments might be con
solica'ed Tito two
Mr. Hsil-Ibey might be consolidated into one II tue
Judge bad cone less than bis outy he might have been
rs liable as Mayor PDrey TO Indictment.
The R cordsr- How AN TO find the facts unless
have the evioeJce before me?
before the Srapd Jury ana here are the afdavts
That were before the Gyant Jury In Nay when they dis
missed the compliant they being the same as were be-
fore the GraD0 Jury june thai found the indictments
The Recorder uncerstsrd you to movefor the qussh
ing OF the indictments on two grounds
Mr. Ha-On three; 1rs' Tor irreguarity the par! OF
the prosecutor in the Grand Jury room second for ir
regularity in sercirg private communication 10 tire
Grand Jury room and thirdly, because even
on the sdavts Of the prosecutor everything done by
Judge Russell done ia The exercise of his Jurisdiction
has Always been the practice OF the court when
Ds'fcs Attorney and the Court satsed that the
btst statement cf the facts before the Grand Jury
dictmept cannot be sustained 10 quash ct the outset
Here The evidence not only insufficient to sustain the
Indictment but Is fully sufficient 10 show that Judge
Russell acted properly will now leave the case 10 my
learned associate, whose is SELDOM heard in this
court sui am happy cay will be found enlisted
against every effort OF malice prejudice and oppression.
HALLS roIxTs.
The following are Mr. Balls legal poius:-
The Grsno Jury OF June endorse "ol found upon the
same papers On which the May Grand Jury have endorsed
T" bin dfmissed"
thirg-as the names OF DaTce, wilkes Co were on the
papers, and the transaction the same.
FONT FIRST.
Therefore teat this was an irreguarty the Court will
notice and quash the so found ia tee exercise
OF It's cscreuon.
The action Of June concluded as res sdjudcoo
IL But If ,he Indictment is no, Absolutely void for bis
re or sr aHon yet The Grand Jury are within the con-
uo Of the Court
(ths PsiAselphis case OF Jack vs. crspe--a Phil Law
The Courtiesous Of it, rights. jealous OF assaults made
on tself Jealous OF what may be Of It's precedents
viii notice this irregosriiy.
But NE June Grand Jury did not take up the matter
nero rnou, ss the cndorscment the Wilkes package OF
They took up The case insrgated by bis communication
IRREGULARITIES.
He sends In without authority from the Court
He seads In without Authority trim the DIs.ric, A.
tsrney-
M da nd
TO prejudice.
> A brief, one part Of which is conuadicted BY Re-
How muon all this infAmed or influenced the Grand
Jury We cannot say.
Tfere degree to ,Ampering with jurors, petit or
impossible to say what par, OF Ut worn statements
gave weight TO or supplied omissions in the sworn.
The ursvorr statements say that Recorder Barnard was
q witness. The Recorder could not dsca this 70 tho
Grand jury az be has in court.
No doubt this hal to do with the finding than any
thing Tor The Grand Jury SAID Why, Recorder Barnard
desires this iroictment."
Judge story IN case Galison report 3sl quasbed an
noictnsn, for receiving the testimony Of person not
Ia hero any distinction between some evidence under
oath and some rot
Ansavis 90 TO Grand Jurics but ursworn statements
ntvtr.
The upsvorn testimony in JUDGE stcry's case was
rejected arc The Investment quashed because IL was
Can we nqure TO what extcer This case only differs
ou the Jncge Story Gaze In that via 20 sosnc par, Of tho
tworn advice ar statement OF facts.
Now. Which guided The Grand JuryY n there Il danger
Ct tan periug, that ,houf be sufficient 20 quash.
Tfe afrdavs endorsed by both Grand Jusies-" dis.
missed" arr "ioUndn-show a disturbance 10 which
Dsrcie arrested wsrrart and wilkes by
a rsg'ft'a'c's verbal ronuanc-
wbioh i sufficient under R S. SIS, sec. s, lib cd.
Upder Archibald, Waterman ed, "a 2, nste q, re
ferrirg 10 Ysaies' Gaze.
Now The fact. before the Grand Jury show the Judge
had right 20 do az he did
wilkes advised them that The Judge was wrong.
But bad The Court District Attorney advised then,
they crud not have fouad H.
viii not Tie Court, In gushing the Indictment, do
exactly what the sr would have npead 10 advise
the Grand Jury 20 DO the Grand Jdry bad had advice
from the JouIt instead of wilkes, viz not entertain
Indictment on us recordf
Mr.. WHITING RsQUIRBs MORE LIGHT.
NJ Whh'ng-There are several points on which the
gentleman opened, but which he did not argue
Mr.. Bsll-I have argued the case fully.
hr. wbtpg-fou have not argued all, ard want u
bear srsutd before on, or al least want 10 have
The points stated u there ether authority 10 be read
NJ -Afvr Las. f~ftw