The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-07-04

A Motion to Quash tho Indictment
Against Peter n. Strong Overruled-
Opinion OF tho City Judge.


A Motion to Quash the Indietmsnt
Against Peter n. strong Ovcrruled-
Opinion OF the City Judge. Sn 81
COURT or GENERAL SESSIONS.
M as 49,. Before Judge Russell
At tho opening Of the court yesterday morning the
City Judge fled the subonsd opinion in the OF the
People Peter r. Strong denying the motion to Quash
the Indictment rs &c e'Hp icv wlel
The Pe4as PEER q. Strong, imPseadea VIA Eaeca r.
slaughter in the second degree in killing las chsrged)
the child with which one Mary T. Strong was quick by
the use q 20 ne cosn
versed to meet the evidence on the trial. and appears
to have been drawn with great skill and care The de.
thus raised an issue to the country The defendant
Strong desiring through his counsel, to make motion
to quash other relief the District Attorney with
his usual fairness and bcralty consented that he might
withdraw his plea and make his motion. without
such consent he would have h had 70 apply 70 sne
the notion which application, under the prac-
tcs Of this court, must have rested upon the
granted as Of course This lberaity of the pro-
scouting officer TO show, In answer to the ntima-
tons of counsel for this defendant to the contrary,
that no means TO pursue the even tenor Of his way In this
as in other cases. and that he has other motive for
his official conduct than the performance Of public duty
The moving papers quite voluminoua, but the sub
stance of them is thsThat Mary Strong is the de-
PENDANTS wife; that he has brought action for d.
vorce against her. pending and ready for trial in the
Superior Court Of this city, that he desires to BE- tired
upon this indictment before that trial takes place; that
Mrs Potter (hs codefendan Is witness for him on that
trial to repe the charge OF adultery brought aga him
BY his wife, connection with that female that this Ia
malicious proeecton against him and his witness de-
signed to aid defence Of the action for DIVORCE that
his wife's relatives have resorted to It with that
view; that he has demanded OF the District Attorney
an immediate trial upon this charge and that the Dis
trict Attorney has avowed intention Mrs Potter
first and should she be convicted to use her States
eyid nee against him. The District Attorney has intro
duced no affidavit in his vindicaton and very pro-
perly think. His official oath ought to be regarded
denial, under OATH OF all accusations against him. un-
painest facts nothing OF the kind appears here. The
counsel who argued against the present motion on tho
part of the people, offered the following matters OF fact
in opposition the moving papcrsFrst that the Dis
trct Attorney had endeayored to bring the trial Of
Mrs Potter but that had been postponed by the court
Notwithstanding his resistance for satisfying the
practice OF the COURT and secondly that this indictment
did not stand in the way Of the Defendants trying his
Action FOR divorce as lie himself considered for that
since the present motion was noticed, his counsel had
made vigorous effort TO force on that trial II the Dis
trict Attorney has determined TO Mrs. Potter FIRST lie
certainly has guilty o. delay towards the defend
ant strong that particular II may be sud to be con
coded that the blame not his that she has not been
tried for the facts relied upon by the prosecution to
that branch of the matter are nocontradic'ed
tion The present application has Two poets Fr as
lief be denied, motion to the court 70 control the
public pros cfion TO the time OF trying the indictment
against the defendant strong The motion TO ash IL
urged upon two grounds First that the indictment
found without previous complaint In the police Office
second that not sufficient evidence be"ore the
Grand Jury TO warrant II As to the FIRST Of
the grounds for ths motion to q ash (which
mas Writing by tho defendants counsel and was
not distinctly taken upon the argumen this court
far a. concerncd-for do not understand that my
associate this court with me In my judgm
o. TO power OF the court OYER and It's duty TO impose
proper restraints upon, grand ur eshas decided that
criminal complaints ought properly to originate IN the
police Offices and that where they originate with the
Grand Jury general thing, relief will be granted
inter cfence Of that body Is requisite u prevent the
statute OF limitations attaching or where the accus
resides out OF the statc, and rcquisnion from the
Governor has TO be issued to bring him thin tho urs-
dction o. courts From the facts cs incd 10 before
the Grand Jury by the midwife this case the present
offence ff & was comrnitted must have been com
mittcd before March s, 1902 and from
The fat OF the Grand Jury finding the indict
ment with such deiibcrnilon and apparent
iuctancs for It was under consideration three
times be'orc bill was ordered, as the o.ng papers
show, II is g, ident that have been proper
have hos poncd the submission Of the matter 10 the in
dieting body longer than the lat February term OF this
court though heie nih have been some days LETT
In the March term during viii the Grand Jury for that
term could have acted upon the complaint Had this
rnnttcr been rceed for the Grand Jury OF the last
March term this court however the statute Of mita
tons mus; have barred IL altogcher for that term
m need ON Monday March o, lh05, aud, allowing for
acy o. s,v eosstly The casey he hrse wears within
which the indictment must have been found, II nj all
world have been exceeded several days In speaking OF
three years from March Q, 1862 the period within
which the indictment would have 10 be found, is
sumcd flor the moving papers state nothing TO the con-
trary that he defendant Sron has, all that time been
usually resident in this state statute requires al in
fnlcss OF murdcr 10 be ound and flied
IN the court % mn ypI rs nse ie s
dant shall not have been nm niabtant o or Usually
resident within, IN STATE forms no par of the mision
OF three years. e X. g. 9th Id, l,0i1. Sec ~ Even
n there had been few days the Mar, term OF the
cou Jeff for the of the Grand Jury upon the
ent complaint, the defendant, al lie been indicted
under those rcumstsnces night vel have complained
thai the matte, offered 10 tal Ldy at NO late day
as deprive them OF the opportunity FOR del bcr,t on
Under the present Circ,nf tafcos, the complaint
submit 10 the ndctn body ~ late as IL should have
been Should be sad That was tho ia Il Of the prose
cuton that the alleged offence was not brought TO the
knowledge the authorities soOner-th answer 10 that
H. Offer publ properly and that the law has
pr scIibcd tie time for which the right to prosecute
ward In strong di icredi,ing circumstance,
against the veri,y Of the charge ard very proper sib
ict for the Jufy be satisfied upon, before Ia
indct No q, ubt, In this In lance, the indcng body
weighed this rcum aIcc, aud the crnpcs 1t occssoncd
in their minds may have caused the embarrassment or
reluctance wi ich seems (ron the moving papers, TO
have Larnc rized their action, aud Induced theta TO
make denial twice for additional evidence. In rea-
ton 10 the end gro nd Of the motion TO qua that
there was Sufficient eydcn bcfore the grand jary 70
warrant the Idc,inen ue Cturi ha- no Doubt. should
be ovcrrul,d. In saying tbs do not mean TO Intimate
that there sufficient evidence before that body
explnncd ~ d unconIrad ctcd 20 justly the defendants
convict ons TO express any judgment upon the
strength the evidence There was testimony be ore
that body going to the whole case bear ng
upon cv, essential part OF the charge and
under IL, consti, ton and laws OF this sta c,
under their oath- ts members were 10 PASS upon
the weight effect OF that testimony The reasoning
nv mind ~, sistibe and unanswersble. To "a cphne
The Grand Juiy thing To keep then thin their
constut or aud lawful limits " the duty and n ht OF
the court, Lt when they have testimony before them
upon which he oaths can fairly act 10 tell them how
much testim ny they must have upon given point or
them would be 60 the LANGUAGE OF the counsel for
tn prosecrt ny 20 oblera'e or wipe them Out sepe
rate and Il d. pendent judicial institution. such n doc
trpe rs IL ontoudcd for in favor Of this motion, IN
effect would make tn court both the indiotng and
try ing bod, II Is unnecessary 70 refer TO the author
ties which have examined IN coming 20 this c0nclu
4 sion. su,e I have been upon the bench OF this
| court many motions OF this description lave
been made nd srgued before me, and have uniformly
granted l Il against the action o tho Ind citing body
where II bls been unlawful or oppressive 90 where tho
ends o bsticc would be y rverted BY allowing " 10
stand. III principle Of these decs did not ufcc tho
separate existence Independence W that body when
acting in the discharge OF their legitimate duties To
say to that body that must have Competent lawltes
tony before II indicts % that u Interfere
with complaint undergoing examination in police
ONCE that the requisite number must DO present when
bill n idercd or that the satutornumbcr concur