The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-10-25

Before Commissioner Osborn.
The Tinted states vs. Benjamin b. Rosenberg
This case was called on for examination yesterday
The great notoriety given to the case-the par
tcular time at which the disclosures connected with
il have been brought to light within few DAYS OF {
national State and county election-the earnestnes
with which the government prosecuting officer O
the district, Mr.. Samuel G. Courtney proceeded Il
bring the whole before the courts and the ARA,
of able counsel engaged for the defence-have oil
tended TO invest the preliminary examination with
more than usual degree OF interest and eclat Lon,
before the Commissioner took his seat the large CIR
cult Court room was crowded in every part. within
and without the BAR principally OF class often seer
ON particular occasions within and around
the purlieus Of the city courts but rarely honorng
the United States courts with their presence. The
number and talent OF counsel engaged ON either
side, and the certainty that examination touch
ing 80 closely upon political questions some interest
ing and exciting legal passages, q r0utrdnce must
follow, there was large gathering OF the legal fra
ternity within the arena, in anticipation OF the great
professional tournament.
Mr.. Courtney, opening the case, said:-May 1t
please your Honor will not take up the time OF the
court In making any extended opening as to the line
OF testimony we will introduce here. VIII merely
call the attention OF the court 70 tne statute under
proceed TO call the witnesses Tor the prosecution for
the purpose OF maxine ont the case under tins stat
ute. 1t is found in Brightleys Digest page pa and
subdivision u being the thirteenth section OF the
act of 18th March, 1913, statutes at large, and
reads:-
cause procure 10 be falsely made forged comerieed
act or shall nas inter- or nre ma snv ,se forred az
counterfeit q s.zen:hp person than
q right belong every such shall Be deemed and
BY q law shall be sentenced be mprsonea and
KEEP. hard labor for period no. less than three
than I'VE be fined In than $500
more than eco at the discretion Of the taking cogn
tions are instituted and VIII be able to show in the
examination OF the case that at least OF the two
subdivisions sixtyelght referred to has been vio-
lated by the defendant will now proceed with the
examination of the witnesses.
Mr.. Barrett, associate counsel for the defence,
moved that all the witnesses for the prosecution but
the one to be called to the stand be ordered out OF
court also ask that the names OF the witnesses to
be called be submitted to defendants counsel.
Mr.. Fullerton associate counsel for the prosecl-
fiOn-You have no right TO that.
names Of the witnesses be given we have a right 10
object to their testimony when called 10 the stand.
The Commissioner osered the witnesses out OF
court and that they be provided with q convenient
place, s. mat they might be In immediate attendance
Mr. Barrett-Your Honor, with all respect press
our claim FOR the production OF the names OF the
witnesses for the prosecution.
The COmmiSSlOncr-It win he time enough when
the witnesses come to be cross-examned. They can
then be severaly questioned 10 whether they re-
manned In the court or not when their testimony
may be objected to.
Counsel for the defence-I suggest that the usual
course OF examination be followed and that the
names OF the witnesses be given. presume the
government means to conduct the case with entire
fairness, and presume the public prosecutor Is as
much counsel for the accused as he is prosecuting
counsel. There Is nothing asked here but what Is
MIR. Courtney-This is the most remarkable request
ever heard made do not intend to give the
names OF the witnesses until they are called upon
the stand Ipresume that every witness WILL at the
order OF the Commissioner leave the court room.
That order will be obeyed and the witnesses will re-
main out OF court till called to appear. That is all
the Court can order, and that Is all shall accede to-
The Commissioners have given the order 10
clude the witnesses, and II any OF them remain in
the room after that order that may be good reason
to move for the exclusion Of their testimony.
Mr.. Fullerton Qor the prosecution)-That, your
Honor is not exactly tenable position Their tes-
tmOny would not be excluded on that account.
The Commissioner said good reason for moving
to exclude the testimony OF a witness who remains
IN the court room after an order OF the Court ex.
Guiding him.
Mr.. Courtney called the first witness, when -
Mr.. Lawrence, for the defence sad-Before the
witness is sworn counsel demands that the complain
ant, Robert Murray. United States Marshal, be placed
on the stand, so that we NAV have an opportunity
10 know the ground and basis OF this prosecution.
The Commissioner-That course may be practised
In the State courts but am not bound 10 follow It,
Marshal Murray made the complaint and knows the
proper Time IL Is not necessary that he should be
called first unless the government wishes 1t.
Mr.. Lawrence-I suppose that under the statute
We have right to the testimony OF the complainant
ut this time.
MT. Fullerton-You have no such right.
Mr.. LAWRENCE suppose we have some rights?
Mr.. Fullerton-That is not among them.
Mr.. Lawrence-we think 1t IL.
The CommissiOner-The practice has never been
followed In this court though the question has been
frequently raised Iwlll allow the prosecution to
conduct the case as 1t peases.
Associate counsel for defence argued that II
seemed TO him that practice settled In ordinary
cases should be adopted IN this one. The AFFIDAVIT
which moved the machinery OF this prosecution
shows that II this prosecution Is prosecution at all
Il is political one IL Is got up under the auspices
Of violent political partisan, who holds his office
ana has held 1t for years at the hands OF the party
with whom he sympathized, and rs we are on the
owe OF great election this prosecution is no doubt
leveled against the party opposed to him. There
fore 1t Is that your Honor should be satisfied that
there Is proper motive Ior the prosecution: When
simply an individual there Is little reason,
perhaps. TO suspect his motive, but when
up 10 this time the bones OF political favorltlsm,
comes into court In inquiry like this 1t is certain
that ne will throw all his influence and give all his
sympathles TO the party In power and whose patron
age he IL enjoying 1t should therefore be ascer-
oters when we are on the eve Of Ola great election.
whether this prosecution is really got up for the
purpose Of bringing . criminal to Justice or from
motives OF different character; whether IL is n SEN
saonal prosecution or whether the design OF II II 10
affect the future existence and prospects OF politi
cal party, which 1t Is, no doubt, intended to re-
nect This IL q very suspicious prosecution, got up
IN very suspicious way, and this, therefore, Is an
occasion above all Others which should constitute
an exception 70 the general rule We distinctly
charge the part OF the defence that this Is poll
tca prosecuton, got up by Marsha, Murray TO serve
thc arty To which be Is politically attacheda mere
trap laid by him from beginning TO end 10 AFFECT the
election, aud not designed to extend ts existence
beyond next election day. We are familiar with the
politics OF Marshal Murray and his personal record
and from our knowledge OF that we make this
charge and we submit that he should be put on the
stand for the purpose Of telling us from what source
ne has derived the prosecution. and on what he
bases the charges against the defendant. Counsel
then referred TO the case OF former Comptroller OF
ia cit fCOmutrDller
plant against certain public officials con-
nected with the administration OF city
government was obliged to take the srand
as the first witness and disgorge himself
and declare why he arrngned the public
officials. Now this prosecution aims at public ON
cias; not only that but arraigns the highest State
court OF original Jurisdiction Why then, should not
the prosecutor be put stand and say, here II
my naked breast level any shalt you can at IT,
have been only actuated by q sense OF duty In this
matter; prove that IL Is prosecution got up with
sense OF Justice and designed 10 bring up the trans