The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-02-17

p p sasT do!S;.; GU y. iss'ss y s ssss m
Don NJ Courtney, AssistaaE Dissries xttoe.S1 e
psafsd for the government
ss THE OTERO MURDER.
va Ai@4 " % AZ
Application SDr, Now Trials ssr &c.
xales ana PcIIicer-The Points q
y Error, &c.
sUPREMH ooURr (BRooKLyN)-aENERAL .x8
Before Judges Lott. scrusham, Barnard and GIbss&
In Che case Of Jose Gonzales Fernandez conviUsd -
the last term Of the Court or Oyer and rerinsr e
Kings county Of the murder Of Jose Garcia 0tero, h ~
City Park on the night Of November e. 1895, thee
sci for the prisoner made motion yesterday for ~
trial. on the ground Of error on the part Of tho os4
Tho counsel set up the following points q eror:-
Frs-That the Court erred 10 admitting the Testimony
presence Of the dead body. Such testimony u was 60
tended could only be material when REGARDED a. o9nts
coercion Of fear were nadmissibe; and If this tese.
mony was not sought a. confessoual " onarac'ee Nv
serdMr ima tIS CSr erred IN submitting tho ssissg
clothing Of the prisoner % the jury. with subseon
instruction that Il was far thsm 70 say whether -
the stains were those q human blood inc auss.o.
pass upon tho nature OF stains found upon ~
clothing Of man accused Of murder, rnalqSs
by &C ence. clearly arises upon this appeal -
IL obtanable the law win not tolerate that Of soog
AND s un S
guilty renders utterly untenable for to assume hns
the other testimony could properly establish the nsss
0tero's blood, and that their inspection was mere sur
pusage, or unnecessary climax TO circumstances whc.
had already established guilt The other evidence soun
only show what these stains by proving that the
prisoner got thcm at the assassination and such an -
competency s Of nc ovdence would clearly BE-
GUS. 10 would be folly 70 suppose that ~.
rarely lsckns confidence 10 snsr own ,.sr ,sd.
ment as 70 the nature Of these stains BY the 80 q
looking az them alone. particularly whom the coutsn
fusa to charge the first proposition In the prnted ca
left them TO suppose that the appearance or the sains
themselves constituted some competent evidence q
Tho third point raised was that the Court erred h
qualifying and refusing to charge the following propo
son IN tho &c tho s jn S0svs srss -
through his counsel otherwise are notinconsstent -
incompatible with the facts in proof they must ndcps
pr,soncr even though they believe the weight o. PROS
bcs 10 bo IN favor of his guilt the question MOI ce19
as 70 the balance Of probab tes but as % whoeer 3
That even though the Jury believe the prSsen1
guilty, unless tey convinced that tho tcstime.y =
that effect conclusive. they must find him not gni1y
Counsel argued the qualification or ruling OF the Court
TO the effect that the hypothesis OF the prisoners nn
oencc arising from hss satemens was unavang y he
behalf unIoss cooborated by evidence, s clearly sus
The appeal was argued at considerable length " vA
Samuel ID. Norris Il assn.4 ageA1a aM w
.a n the CASE OF PBLLIcRR. AZ VI W x
The counsel for Franclsco Gone Salvador aas Pesa8
which the Following points wsrc submitted - n
FS = Refusing = postpone the triALa Counsa -
@ s cse 1SSs ssss s oosSs
Ylrst evidence - 70 cbalsetsr 70 matsrA ~ 60
most valuable . a.pcrsoa scea4cd Of csm4 eyeany
crcu,.stsntini in cfsrscssr second 10 pfisossf -
mot boon guilty Of 'achsa ana isd he only aks1s .
Ss ms ss S e p ss * . On ~ &. 0IT ground
pubiIcs.ion pf = Ibss tending y .inaosa@. -
minds q ne Jurors N folugag .l.sls - :.
ans %ssa term ossA. court ssr az nccs%sus M -
ana she nszs month after DO e6snss s.s1.aill
whole Of Inc intsrvening time md TINT there ~ 60
sidcrsbic cxcitemcnt In tho public mind ~ -
Their argued that the Application Of the prscnss ossns
for POSITION mont ON the mornnE % which ~ ~
was called on. before jnro! had bcsn called va =
stated tho time, renewal Of the Application p1y
ously made we'll FOR causes which had come wio1n3
this Immediate cosnIxance Of the cour end ssuu -
Sscssd-Refusng 70 allow the witness vleia y - -
rndictsd Tho defence Of tho prisoner was MIST p -
Mr. Cscro. and that the susprious creumssssoss 49,
mot OF his crime This defence did NOT surprise sl.h9
known 70 ths hitter and was distinctly satcd 70 ne
mcr before tho trial commenccd Secnud, ths qusSet
Ssr 70 isS Mn,T r' we're not ss
20 that the defence were b1und BY The snsweA -
had already, on his direct examination, given IN acco1
OF his own whereabouts the night OF The murder g.,
under the circumstances, Was perfectly material -
proper 10 contradict him The prosecution cannot 49,
itself OF appeal that tho pr.sonors question ~
sufficiently definite time place. because The -
lection on The trial was not put on that ground
7hfrd-Admitlng vest In evidence. Il n furtAQ
alleged that tho Court erred In allowing tho vest provsA
70 belong 10 the pr the jury, accompanies
by the remark, In the hearing OF the jrry "You en-
argue the spots not rpots Of blood and THO Dieo
Attorney may argue that they are" No evidences -
been offered @ establish any spa or spots upon NJ
pr soner's clcthng as fpots OF blood Nor anY
sun lent proof offered during the trial 70 aushorss -
clothing TO DO placed In evidence before ths jury ~
such purpose. 49,. ~ t l.
townsend the senior counsel Tor PeIiIcur, bsdaG
unavodnby abent through ind sposition this w.
submit by Alexander McCue, Esq, who said thst y
the Court should decide the appsahagainst the prsens
that IN view OF the importance OF the points rscd tha
The Court should order stay OF procoodinp until u
case could BE- reviewed by the Court Of Appeals ~
The colrt took the papers, and viii probably give ~
dectsion on Monday