New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1859-04-09

Mr. Msraser-Hers & is; sa affidavit tass II
! seS.s .bo, arc killed M Rey.
Mr. Cuhsl.-TSs, lie 10, tue charge here. ne
otrge is, thst Mr. Sick,es mrree'ed N Hey 4
man v tsAec with pi'tol in bis hsnd-his red ncss
bsnd-,tsneipg over tire body Of his yice,s,, so1 ~
biz eide stands his ooDiedera - Thst COME dsrsle
eIsulired before TIE CoroJers Jory, and tisre u 10
clearly shown ha, he is Confodt rate, ant yes tie
sry ent here IL, that the Government Is neP-teos
pedctd 20 The Testimony Of that confederate ~ svc8
lin CAL y. that II was not necessary 10 arSue 40
abSu,cy ~ ihst proposition. Toe ms'ter 10 the
secretion Of the Court. The RUE Of law ,essdaS
rotff cs,sg' A where the Teasco does not ex ST the
rule ceases 90 apply. TIE cases cited in the bcoss
ar mere instances in which the Count, FIR the
purposas OF pubic Justice, bad eXsruised IL : dis
crs'.ou n compelling the prodrct'ca Of W tness.
Wa, this sse to induce bis Honor TO eNercis tbst
discretion lie appreciated II WAS Rot. lie RS terreS
.. A. csse a.. "a. aids ard argued tha; the ruling
ths, case DID net apply 10 this. The two Somes con-
c.rIed were, IN common pArapoe, Two S'rumpets tne
Grad jury Sho examined them did not deeu ,1oen
worthy Of credit snd their names were rot ri Ard
upon the stand whore they were resSexs"iuc ~
lie then colleague, Mr.. Rstcie; and NOR Ia 'der
cfCss.x. miratoD he hsd seidom witnessed. iais, De
repeated was s,ter for the exercise OF MS non rs
discretion. II MS Honor thOuent thsf Tor the pa
posts OF public Justice, the motion should De grsaeea,
they were ret here 10 deny II. Tney wanted merry
that the gran ting denying OF the melton shoad pe
in the intellect Of pnbDc justice.
TIE Jhdge-li is proposed By the coanse tor the &C.
feuse that the Court direct TIE proseouo to summos
70 the s,acd NJ Bu,teiwcrth, Mr. Walker and Mr..
Woodbridge so give the defence an opportunity
to cross-cxsmn ne them. This Court never has gone
further than i cid IN the csse Of Edwards, WHICH has
been mentioned II st was ease where the wit
resses two women, uam,d Garci> and Raymond,
ysfe coIpm TIED 10 is oeiau Oi their recognizauco
10 appear teetiy for toe prosecution They were
led IN Jail that original commitment al toe Tune
the motion made. In that case, the Court did say
81. A., 1 Was a WI ss
70 direct the District Attorney 10 put these persons On
the ssId. Tue Iext case that i0o REQ that "ss the
case Of Herbert where man banned Gardner, ao In
uma'e associate Of HeThefts, went ION ms room
ncross 10 the note where the homicide was CO united,
ard was with him (tierhertl, and wss examined On
tie part o the defense. To be cure, oa the hearing OF
the babess corpus before me 10 a1nu hefoeN
10 bail the Cont refused IN that case TO PAT
uduer on the stard. Mr.. Batterworh beiog before
the Cor,L.r does net in ny ads mept en,tle tue DO
fen-e TO have bim called BY the Uaited safes In the
first plsCe the Coroner's inquest IN tins case, neh
within hour ard e hall or two hours after the
death, was held without any legal adSloe, 80 fA -
va, kuowr be Coroner, N the exercise Of his luts-
mstt thous ht III TO brioe Mr.. Butervorh before the
uqu ~. 90 not think that action binds the UpiteA
s.s to the course asked to be enforced in ths No.
L Is said. however, that the prroner was committee
on the affidavit Of MIR ButterSoTth; the evidence IN
the case q ows tha when the melancholy affair took
place Mr. ButteTwoIth ga, present, and that after Il
was al over be took the arm OF the prisoner or tho
prisoner took his arm, and they retired together.
tLk IL "a not or too lar for the Court 10 say thsts
ir prt sumption II the affidavit he msde at toe sa
was go act r eddy 10 the prisoner tbs, Sas done 10
prevent probsby sthoIough examination at tn time,
ard may haze been wisely tone the prisoner hsdtho
rielt TO ahhold hy entering into an examination %
the case then. THIS case strle me as being como
tbirg Ike the Gaze Of Gardiner he too, was an asso
cia,e Of the prisoner, MIR. Herbert. so far ~ the
Court car iutee from the evidence before it, Mr. But
ttrworth wss friend of the ptisolsr; L. sheref're,
am Il pcr Cd 70 require do think the purposes
~ in,tics require that be should be placed tho
ia by the tnueo States. With respect to Messrs.
Walker srd Woodbridge, 40 far a. tue evidence shows,
tine were not present that alone Is sufficient reason
IN Icectpg The motion. Rnt beside thst, there IL no
4yite Gee bhteyer that when they went before the
Grand Jury toey went there 10 testy as TO tins osse
III all il may have been 10 some Other IN after which
the GrGId Jury were lDquir ng shout Inc order ios
the ,ubpepa gene raj that certain witnesses sea no
suu nOned: Il not specify tor Ybst, nor IA tnero
spy tesson which the Court can found the oPlnion
that IL Was TO testify TO this particular matter IL
nav have been in regard 10 something elss atogethef
decline, therefore, to grant the motion IS " either
Of them.
Mr. Brady I understand from the District Attorney
thst tho testimony for the prosecution Is Closed
.Iudge-Nes, SIR; so they say.
Mr. RrbCy Ard II seems, from some OF your ltonore
deci.ious n past that the rule applies Dere that
III pIossCuton must exhaust ito affirmative proof.
Judge lts proof IN cbief-ob, yes.
M Brady-And hereafter it Is to give nothing but.
rebnt'pg testimony.
Jodee-- That Is 80.
IL beng now g. ocl ok, the Court adjourned.
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