The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-06-12
the LEGAL MITCH IN THE CASE.
Counsel for the Defence Objects
to the Motion.
ue Claims that if the Petit jury Was
Illegally Empanelled So Was
the Grand Jury.
Ii the Judge Sustains the Prosecution the
Prisoners Discharge Will be Claimed.
JUDGE FISHER RESERVES HIS DECISION.


JUDGE FISHER RESERVES HIS DECISION.
WASHINGTON, June II, 1867.
The trial Of John H. Surralt indicted for the murder
OF the late President Lincoln, resumed in the
Criminal Cour, this morning, Judge Fisher presiding
The crowd in attendance again very large Among
those attendance in the court room, early hour,
were three four ladies' These latter however
disappeared.
The court was formally opened at ten O'Clock, and the
names Of the jurors were called
Mr. Bradley, said he did not suppose II necessary
70 await the arrival Of the prisoner to the pending
motion. When the motion submitted upon the
part OF the prosecution yesterday TO quash the OF
che panel the defence surprised; for 1t was the
arst such motion had been made in this Court.
The particular form Of motion did not then attract the
attention of counsel but upon looking at II APP
pears entirely novel, and precedent can be found
for 1t in other English American practice The
object Of the motion should DO to present
facts, whereby the Court may infer whether
or not the jury were properly summoned and
empanelled, and IL must therefore, state facts, and
conclusions Of law. He would read the motion and point
out its defects Mr.. Bradley read the motion filed,
and continuing his remarks, said he desired to have the
facts upon which the prosecution relied set OUT for the
fully through the English presidents and through the
precedents in this country and from them he concluded
that tho facts upon which the prosecution rely must be
se out in the motion and cannot be supplied by ada
Wit only He had no objection TO the prosecution COM
peting the motion by inserting the facts but in the
present shape il not admissible to the Court. In
support OF his position Mr. Bradley quoted from the first
volume Of Archibalds Criminal Practice pages $40 an
SAL
While Mr. Bradley was speaking the prisoner was
brought IN and assigned seat near his counsel
Mr. Perepont. for the prosecution, conceded that
the for the Court OF fact and the only
question how 1t best TO bring these facts before
the Court 1t was not necessary set out all the evil
dence in order 70 raise demurrer The mode of getting
q the facts should be the mode usual IN the Court but
he did not the difference 1t could make whether the
affidavit be pinned to this motion or not.
Mr. Bradley said he did not suggest that the affidavit
should be pinned to the notion but that it should be
Incorporated in the motion itself 30 that issue could DO
Joined on facts stated
Mr. P,errepont remarked that 1t did not seem to him
70 make much difference how the facts put in for
he admitted tie Court was TO decide upon the FACTS
Archbald's Criminal Practice TO show that 10 drawing
the motion the form must set forth the matters Of cha
lonyc with precision and certainty. IL for the
10 decide whether this had been done.
Mr.. Bradley said Il the prosecution would show how
they could plead 70 the affidavit The defence would be
relieved was to him novel proceeding 20 aver
that certain things done contrary law when the
facts were not set out 10 the motion.
The motion was then amended by Incorporating the
factA
M Bradley thereupon died the following demurrer
i
Inc ssa motion Is bad ia law nnd n subssncs ns &
stated do not constitute any ground In law for challenge
Of the array.
The prosecution joined in the demurrer
Mr. Merrick proceeded address the Court in op-
position TO the motion He contended that II the motion
Grand Jury that had found he bin OF Indictment against
she accused and If II applied TO the Grand Jury the
OF mo. guilty. and plead specially to the Indictment
and If this motion now pending prevails the prosecu-
ton cannot resist a motion for the discharge OF the
mrs moi m m IN 0ff mi
soner that this motion should be opposed; for II the
motion prevails, the prisoner - at large II Is some
what remarkable that this objection should be pre-
scented for the first time at this late day. II the
assumption Of the prosecution correct shen since
the act OF June 1862 jurors have been drawn mpro-
perry and the lists have always been prepared the
same manner in which this iist prepared II this
jury was illegally selected then heourt has been dealing
very nconsidcrateiy with the lives and the liberties
the people Of TINS country Since the year 1853, tho
year when his Honor Judge Fisher came upon the
bench has been hung under this system, and
scores have been sentenced TO the Penentary and the
Court Is To be gratined with the intsgen that
all these acts of taking human life Il was guilty
simply Of killing human being and In ali incarcera-
and false mpnson@ens TINS view Of hs case presents
facts for rcection but he apprehended
statute. Mr. herrck then referred TO the statute OF
June 1867 and argued from IL that the Registrar OF
Washington tho Clerk Of Georgetown and the Clerk OF
the Levy Court were severaly 70 act independently
their selection Of jurors 10 represent the territory Of
district OF which they were officers They must seecs
such men for jury duty as they deem best qualified aud
each OF the officers best Tor himself were
best qualified for Jurors this special jur sdc,on
Dir. fierrepont SAID he did not understand motion
TO be q "pieadngn in the common acceptauon 6i that
term but was addressed 10 the sound discretion and
Judgment OF the Court, and the facts may DO brought
forward one way as well as another
Mr. Bradley insisted that IL a fact for trial.
The Judgment Of the Court
Judge Fisher, after examining authorities referred TO-
decided that In accordance with precedents the facts
and not the Law, be set out in the motion
Mr. Bradley then suggested that the prosecution ncor-
porase their motion the facts upon which they RELY
In. mo IN do
Mr. Douglas, the City Registrar, wished to his
n o,,,en az ~, .ns s,r r a 70 400, VIVA. mad
Of the Clerk Of the Court himself and the Clerks OF
Georgetown and the Levy Court There was nothing in
the section that required the duty Of selecting the Jury
70 be done conjointy by these olcera The corpora
tons named in the Law are distinct and the District
Is 70 select the jury would be something remarkable
for the oficer Of Washington to select jurors from
Geogeown-for the oiccr OF one corporation TO select
the jurors from another corporation But in drawing
the jurors from the box all were together because the
jurors selected Tor all the corporations
Mr. herrck then argued that u not competent 10
extend inquiry back a. TO what particular individual
ad the WORK when All three were presen. and parcpat.
subject OF inquiry This board Of officers had rights
and entitled 70 the benefit OF legal prcsumptions
~ much this Court itself and the first time
he had ever known the inquiry 10 be made how Of
several parties had acted Ia qaax judicial capacity,
when proof that oil the board, a. IL had been
called we're present participating.
Another point made by Mr. Merrck vas that the
bad faaled the requirements OF the law but how far
me failure 70 comply with all the requirements Of the
nw vuaisd what had been done He maintained that
nere Vas failure 70 comply In all particulars with
ne Mv snen the officers themselves liable but
1885, e"ns was valid aud binding AGA The statute
oe.nele aeeiMed the panel should be void the
we ON en selecting the jurors shall be nugatory.
smpy a.o.teo certain things 70 be doae, and .
nccosy aAsnie and courts had gone TO great extent
oonssIung directory statutes In order to uphold what
M msnes here quoted from ssdgwcks Statute Law. |
Dees 81 5sI inclusive. and said this decision showed
dnpossuon 70 uphold the validity OF what might BE-
Aonc under statute although the ohcers did not en-
essiy oempy VITA we statute. The law Upheld the Act
- valiA bus punished The officer A derrl,e. Nh, n
Unnecessary 70 pursue this point fortber :. ,hs
seoood socuon 81 the statute he argued was cncr.,vs
sAss inquiry could be made VIA, Lad sen aoce
By osscsr end What mad been done BY another The