The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1858-10-23
LA W INTELLIGENCE.

!
Judgment and for new trial.
The concluding argument for the motions was
made yesterday by the Hon. John Nelson, who af-
ter some preliminary remarks, said he would
confne himself simply to the facts of the case now
under the consideration of the Court He mr.
ged first, that the verdict rendered in this case
Illegal, and ought to be set aside, because
the Jury had failed to define the grade of rur.
der, as they were compelled to do bv the act of
assembly of 1909 Murder at common law, be said
had degrees, but by the act of 1909, the Legsla
ture undertook to define the different degrees of
murder and ordained that the jury in their verdict
to ascertain the grade of crime the obligation
is imposed upon the jury to find so, before the court
can pass the sentence. Ifthe Indictment was framed
to charge murder in the first degree, and the pris
oner pleaded guilty, he does not plead guilty in the
first degree but it is the duty of the court to
tam the facts from the witness, and decide the
grade OF the crime before passing sentence.
Mr. Nelson contended that the jury must deter
mine the grade of the crime, the Court has discre-
ton IN the matter, the degree must be ascertaned
by the verdict, and in other way, can it be DONE
Mr.. Nelson cited several cases from the books in
support of this point in his argument and to show
that any variation from the directions of the
statute, in the rendition of the verdict would be
fatal to its effect and that this point had been de-
clded eifectualy so, both in the United States and
England; many cases quoted. One case
from Sd VOL Of British Crown Reports-where the
statutes provided that when sentence of death was
pronounced upon prisoner, the Court must direct
where the body must be buried, which it failed to
do, and objection made to the Judgment on this
ground and it was decided by higher tribunal
fhat the Judgment was illegal, because the act of
Parliament had distinctly stated how the sentence
should be passed, and the direction of the burial of
OF the body was part of the sentence.
+ The records in this case show that the jury did
not find the grade of crime, the case tried on
the 4th OF October and the record the docket of
the Court was made the day following. The
verdict recorded is not the correct verdict
Mr. Nelson read from Mr.. Schley's affidavit to
prove this. Mr.. Schlev atlirms that, when the
question, as to the guilt innocence of the party
was put to the jury, they replied Guilty." that
then in the usual form he said, 'Gcntlemen of the
Jury, hearken to your verdict as recorded by the
Court that verdict then recorded, 'guty."
Mr.. Schley then atlirms that the jury was polled,
and the question put to the foreman, "Is the pris-
oner guilty of murder in the first degree ?' the
foreman replied guilty, and the rest of the
jurors. replied affirmatively. The Court had
no right to poll the jury; it was too
late, the verdict had been recorded.
Judge Stump remarked that he had told the
clerk to ask the jury if the prisoner guilty in
the hrst or second degree.
Mr.. Nelson COntinued-When the iury was pollad
the foreman only answered that he was guilty of
murder in the first degree; the other eleven Jurors
only answered guilty and he maintained that
when the jury were poled they did not find the de-
gree of murder.
Mr.. Nelson then referred to the question of the
power of the clerk to make an amendment of the
record, and Of the power of the court to alter the
record IN the absence of the prisoner, and said it
was most mOmentOus one, and as important a
matter as ever occupied the attention of any court
in MARYLAND.
He contended that after the verdict has been re
corded it cannot be changed the jury can correct
their verdict, but the clerk has no authority to do
It, lie referred to the cited bv the counsel on
the other side, to show that the minutes could be
corrected or amended and said they were civil ca
ses and did not apply here. To show that the minutes
could not be changed after the rendition of a
q To pfrli- oF
ry whore brbe had been offered at an cleo
ton. May it please the Court. these are not mod
ern cases. stronger means than bribing are now
used to accomplish such ends-the Court had in
instructed the jury to find in a certain way, which
they failed to do afterwards the verdict as record
ed was changed, higher Court decided that the
amendment ought not to have been made that the
verdict as recorded, was illegal and the prisoners
therefore discharged. Mr.. Nelson cited other
cases to sustain this point and referred to the cases
brought forward by the other side and showed that
they did not sustain the position taken by them that
the Court had the power to alter correct the
cord. At twenty-five minutes past twelve o'clock
Mr.. Nelson closed the argument, when the Court
remarked that it would proceed to examine the au-
thorites referred to by the counsel on either side,
and deliver its opinion in the morning.
James Garvcy charged with the larceny of Lottery
tickets, valued at S3l, admitted to bail in the
sum of 5000, Michael McCabe becoming his bonds
man to that amount
In the case of Michael Igo. charged with selling
house, bail fixed in the sum of $500 for the first
and $500 for the latter offence
The Court then adjourned until this morning at
10 OF clock.
UNITED STATES DISTRICT CoUnr.-ITon W. VIM.
Fell Giles, Judge William Meade Addison, Esq,
U; ;. District Attorney, prosecuting.
The following business occupied the Court yes
terday:
The United States Us. William Wilkinson, George
Stein alias Rudy, George Fowler, Thomas Hogg
and William McEldary, indicted for assauIting with
intent to kill Bernard Bradley, on Friday, October
10Th, 1858, at the new Post Odicc buildings
Charles L. Kraft and o. +. Hack, Esqrs., ap-
peared for the prisoners, who through their coun-
entered the plea of ''not guilty"
Mr.. Kraft then made the following motion to quash
the Indictment
United States L. s. District Court
George Slime and others. 1855
The traverSers by their attorneys move the court to
quash the Indictment in the above named cause
lst Because the United States Government has ju-
risdcton the territory or place upon which the Of
fences alleged against the traversers in the said ndct
meut alleged to have been committed and therefore,
this court has no power to try punish crimes offences
committed in said place.
ID. Because the Government of the United States has
not the power and the jurisdiction the place where
said offences alleged to have been committed
jurisdiction remains in the Courts of the State of Mary
land. CHARLES l.. KRAFT,
OLIVER +. HACK.
He gave the following reasons for assuming the
position:
First-The United States, by mere purchase from a
State of property, acquire nothing more than title to
the property.
Second-Purchase with consent of State without
walton of uIsdctiOn to punish offences committed on
property by the States) gives exclusive power TO the
United States to lesatc under the first article OF the Con
stitution of the United States.
Third-Purchase with consent of the State reservng
only to the State to execute criminal and civil process
gives to the United States jurisdiction by Act of Assem-
bly,.
Fourth-Grants of property with reservation of iuris-
4
property, nugatory and void at least far iuris
dctOn is concerned the United States having power
under the Constitution accept territory places for the
erection of needu buildings which it
else exclusive legislation and jurisdiction.
Mr.. Kraft discussed at some length each of the
above propositions, claiming that it not the in
tention of the trainers of the Constitution of the
United States that the national government should
hold concurrent jurisdiction, but that the provision
of the Constitution which referred to the purchase
of property by the United States for the purpose
of arsenals, forts, &C.. demanded absolute and en-
tire jurisdiction; and when the cesson of property
was untramelled by conditions, the right of iuris-
dction passed to the United States with the right
of property. 1t was not restriction of iurisdic-
tion and it had been decided in various Courts
by the most learned urists for State to reserve the
right to serve a criminal or civil process upon
parties residing on United States property, or who
had taken refuge there. But it must be remembered
that these processes must be for crimes committed
elsewhere than on property belonging to the
fore infringement the rights of jurisdiction in
the Federal Government. He claimed that it was
definitely settled principle in law, that two soy
ereign powers could not hold concurrent iurisdic-
tion; the State of MARYLAND being a sovereignty and
the United States government also being sover-
eigAy, that it therefore impossible for them to
hold Joint jurisdiction. 1t was also impossible for
either of these powers to take from the other any
right without the full consent of the power losing
the same. That any reservation of jurisdiction by
the State ceding the property, bar to the
exercise of jurisdiction by the Federal Government
The Legislature of the State of Maryland in the act
of ceSsiOn of the poSt-oilce property in this ctv,
did not only refuse to give jurisdiction to the United
States government, but in the most express manner
reserved the right to punish crimes committed
upon it. The gentleman here read portion Of
the act of cession, Gaws of Maryland ch. 49, in
which the State not onl claims the right to
civil and criminal processes on parties who had
taken refuge on the property, but also reserves the
right to punish crimes committed therein. Mr.
Kraft contended that this latter reservation invai-
dated the transfer Of jurisdiction, and that the uni
ted States were, therefore powerless. To strength
en- his position, he read from various authorities,
among which were the following: Sd Story on the
Constitution, page l0l, secs 1919 and I220 and page
JOB, sec. 1922; Sergent the Constitution, pages
33S and 339; lst Kent pages 472 and 473; John
ston's Report, State of New York, 17th page 1892;
Mason's Report, Vol 9 pages g. Ga, 65 and &C;
Mason 5th vol, pages 362, 1863 and 364.
The gentleman proceeded to press his objections
with earnestness, and asked for discharge of the
prisoners. He stated that an objection which he
would not then urge was, that there was no such
crime as an assault with attempt to kill. on land,
known to the laws of the United States. He would
not at present argue that point but it for
future notice
Mr. Addison the Trnited States Attorney here