The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1860-07-15

! In the history OF crmiua, law, as administered
in this city, than the opinion delivered by Re
corder Barnard gushing the indictment for
felony foapc against VIM. N Mcintyre and J..
T. Tucker, for the offence of having attempted
TO bride Alderman John H. Brady In this
opinion the Recorder takes ground thai the
offence was at worst misdemeanor only,
punishable by imprisonment in the peniten'
tiary; and that no crime can be regarded as a
felony "unless it is punishable either by death
OF Imprisonment iu the State PRISON." or unless
tie Legislature "has expressly declared 1t to be
felony regardless of the place of imprison
men,
TIE hole opinion Of the Recorder attempts
to raise a D. resumption of malice against the
NJ, ,ric, A tom, ", where he says: "Fron the
,rho,a e.on n n IS indictment it il clear that
il was narticu,srgy Intended to endeavor to
re ise the crime from q n,'sdemeanor 10 q ieio-
ny; and where such is tie in. 'ent OF the pose
cusor, I think defendcnf should moi be
called on to submit to q Nr
| higher grade Of offence than $hat >Fo'ca I"
any be has committed" AgsinT he says
The broad question is, whether the Dptrcs
Attorney has his option to indict TOR a .Viony
in I'll cases irrespective Of the nature Of ee
crime whether it be misdemeanor or not.
think not, and shall therefore direct an order to
be entered quashing the Indictment for felony"
Now, in this case, the District Attorney, under
orders of the Grand Jury had prepared two
distinct Indictments, one charging the offence
to be ebony, and the other charging il as
misdemeanor- the felony indictment alleging
the sum offered to have been S $780, sua n1e
date Of its offer 25th January. 1860; the inside
meanor indictment warning the awount to
$4,000, and the date of It's offer to the 18th OF
the same north. II will be remembered that
the object of this allesed bribe was to procure
the confirmation by he Board of Aldermen of
Gideon j. Tucker, who had been nominated by
the Mayor as President of the Croton Board;
and now let us examine, by the light Of the Re-
vised Statutes of this State, the opinion of Re
corder Barnard.
Section nine, article second Of the Revised |
Statutes las amended 1853, CRAP $50, section ID |
concerning Offences affecting the administra- |
ton OF JUSTICE declares that every
person who shall promise, offer or give |
or csuse, or aid or abet in causing !
to be promised, offered or given
to any Governor or Eieutenant Governor, |
or to any member of the Senate CT Assembly |
of this Stats after his election ss,ch membe r.
d" = - or to any member OF the Copu-
mon Council or corporation Of any city in tn is |
State - any money goods, sight in az |
ton, or other property. or anything of value, |
or any pecuniary or other individual advantae e
present or prospective, with intent 70 infnent re
his vote, opinion. Judgment or action npon an y
question, matter. cause or proceeding whic b
NAV be then pending, - shall upon col l.
viction, be imprisoned in State prison not e3 :;
ceeding ten years, or shall be Sned rot excee' l.
ing FIVE thousaud-dollars, or bo.h, in the discr e.
ton of the Court
From this it would seem that. the Record Ter
oonld never have read even the mere substar ice
Of that law under which his opinion 10 this ase
was supposed to be based for he evider lily
considers that Messrs. Mcintyre and Tucke 6, if
convicted Of tho bribery charged, asuld lnly
be punished by Imprisonment ira patient larry
whereas the statate prescribes the snrish ment
as imprisonmentin State prison 'notex coed
ing ten years. or a fine not to- sxe.e five
thousand dollars. or both. In the dsc,e don of
the Court The punishment, intact, pr scribed
by law for this felony Is nearly three Zines as
severe as that pronounced against tAe felony of
grand larceny !; bat as bribery cases ire always
liable to greater variations Of ou7 ability. the
Court Is wisely allowed a larger 4 secretion in
their punishment.
As far as ths Recorders attemg IN make II
appear that the District Attorney SEEKS to raise
this offence to felony, wharss is only. in
reality, misdsmeanor. that os abauickly dis
posed of. Section forty, chaps or AIT of the Re-
vised Statutes concerning crima and their
punishment, defines ths ters "felnv,, 10 mean
"auy offence ior wn'ea''nS odendf, on convic-
ton, shall be liable by H. = to be punished bv
death OF by imprisoumsa' in the Sate prison, y
Now, as Messrs. McIntyr q and Ticker. IL con.
vietee' would De i'aois to ten yeas each in the
state prison. II Is aunS alt 10 imadne how the
Recorder reached his conclusion that their Of.
fence, IF any" az he says himself, did not
amount to a felony
Weare giaa 10 learn that in view of the gross
and startling faD acy OF this decisbn, the Grand
Jury have ioun j another indictment for felony
against the Say ne parties, and thai the District
Attorney nS moved on the case nthe Court OF
Oyer and I'erminer, where Recorder Barnard
may be Unable, however willing, to reach IL.
IL is dW to the public that this trial should
be bad and due to the accused that, II inno
| cent, their innocence should be established. II
Is - be regretted the case did not appear
be fore Judge Russell, whose prompt and firm
yadicial mind would have grasped the whole
!. subject, and established a new era, both In the
construction and practice Of the laws protesting
TO punish bribery. Heaven knows We need enc
or two severe examples Of punishment for this
species of offence: and with the case, either be-