The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1860-03-05
Supreme C0urt-General Term.
Present-Hon Judges Sutherland (presding Judge),
I'm and Bopny

pfe6ent-HOn Judges Su0erlauu (preSidng Judge), Al
len and Bonny.
THE WRIT OF ERROR IN THE CASE OF ALDERMAN BAR
RY QUAsHED-MoTION FOR NEW TRIAL IN THE CASE
OF MORTIMER SHAY.
aARcH 3-7he People rs Richard Ra7y-In this case
the Court decided quashng the writ Of brought
by the people from the Court Of Sessions
THE CASE OF MORTIMER SHAY, CONVICTED OF MUIR
DER
The People w. Mortimer Shsy-In this case Nr. Il. I.
Clinton moved for trial for the defendant, who
indicted In the New YORK Oyer Termncr for tho al
eyed murder of John Leay On the 81 day OF February,
$780, bis trial upon such indictment resulted verdict
Of guilty The case comes before this Court writ Of
error en- the following cxcep,iops;-
The learned Judge on the trial erred in refusing 10
strike cut the testimony Of Stephen Lsary To this ruling
defendant excepted 1t appeared by the record OF
yctcn introduced i'll evdence that the witases had been
convicted Of petit larceny ara sentenced therefor TO
House Of Refuge The Judge erred in allowing the Dis.
trict Attorney put the question 10 the Spencer
"po you know that the prsooer had a cutting match
~i'h any previous TO tn. killing OF Teary?" The
indictment Is fatally defective II does no, disclose cri
ininal offence within the rules Of criminal pleading;
jurisdiction "Tne well place ought In general nol
merely to be mentioned at the beginning OF the ndc.-
fact; but sitter tae TINE has been once namei
with certainty II is afterwards Sufficient It in
the words then and there, which have the eject
II the day and actually repeated The second
ssuable fact is that Mortimer Shay held knife in his
right hand which set forth the folio ing
IA certain knife which he tho said Mortimer Shay IN
hs ri,ht hand then and there han and hala,- -na
third ssuab'e fact should have been "that Mortimer
shay with q ccrtsn knife did beat, strke STAB - Sc
The absence Of the word "wth destroys the o-orare
Of this svernent This averment the cst essence
the soul of the whole Indictment Unless Il here charged
that Mortimer Shay cut, thrust" sc thai Allegation is
rowhcre made Without supplying word win the
language contained In this count BE- forced to cor
vey idea tina: defendant inflicted the violence which
caused death
In opposition 10 the motion the District Attorney sub
mi,ted that ps 10 the competency Of Larry ony Of
o. which he was claimed 10 have been cor siced
that OF pet: larceny for whch nc sentenced 10
tie House OF Refuge This, being first offence was no;
felony aud the sentence thereupon did not disaunlfy
him witness AZ 20 the question OF the Gu, In the
bat, the District Attorney contended properly ad
rnit.ed the sufcieocy OF the indictment he con-
eodet that II clearly describes the offence wit that of
murder, and everything necessary constitute !; Is
positively stated In way the indictment be read
fail TO describe the offence, and every essential
thereto 80 70 leave doubt respect 70 either
This rendered clear by ornttiug the clause con-
corning the knife, which II Is claimed that the word
with should precetc II the indictment sufficiently
describes the offence, deficiency in style grammar
any clerical error. merely formal, and is cured,
especially a,er verdict, by the statute Of ieofa,ls
Decision reserved.