The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-12-29
UaiIEO sIAIfs cIasvIT e0ysI.
The Order for stay az PreceedinGs on the
Fullerton Case yacascd-rhs Case Pat n the
Calendar for Trial.

Calendar FOR Trial.
The United States -. Walfrm Fullerton AMI Jake
Dupuy aud otaeYw--0ur readers WITH remember
that In tins case on me 18th % December Mr.. Fuller
ton applied 20 Judge Nelson al Washington Tor
stay OF proceedings ON his indictment uil April.
the ground that serious ana grave questions a. law
were involved. and because he desired fnh bench
10 hear tie case, SO tAas tese h4nt se ,sf.Aa s.s
Of division II opinion granted By tne 4Glgs aud IA
that case that The cAnse might lie taken 10 the
Supreme Court ~ the lnltcu Slates.
Mr.. Courtney, Lriied s.ases Dis'rlct Atofnes.
stay OF proceedings, announces 10 sie Court, anAsc
Benedict presiding tat ne would take sieis 70 pre-
senI the true crCnms'ances aud 4acts ~ s1ee Acs-
son, aud taat he beAexec Judge Aeiaon woaii IN
knowing what these really are, FAcRie tAe UfAArs.
1his ,lay judge Nelsus seat Al op4uiau ifou aei-
ington Nacatlng lne order ana diitN ihE ne eAase 70
be placed On tue calendar Tor I'LL ~ - lSesAAc
The viii be put on the caieaidag ioF si-i Toe
first Wednesday in January.
Ma FuLLEGroN's AFFIDAVIT.
The following a tAe aailaYt prtsc1tct ~ Mr.
Fullerton 70 judge Nelson 80 N.th wv " .ttNt w.
the stay or proceedings WAS granted sihgs vacated
ne C,siled Satcs - W.atam Felr-iqa Z as.-
Southern District 81 New Tors, - -MAAam luheF-
ton, The defendant above mentioned being day
sworn, saws that he Ia. fuly aIa i&uly atateA has
case herein 20 Aessrs. .aaraes vto1os y, - f.ca,
John n. rortes, Clarence A. seward, y. - teiAs
ana John y. Burfi, the counsel 81 TVS delcntiaha
herein and thai al.sF SUCH statement mate a. a1se-
said he Is advised ~ has SAID cOueci Ih me eilaer
and the eject hereinafter stated. that ne niict-
ment herein contains nine counts whoa Ma ben
framed under ana wth reference ~ aileteAi
and distinct statutes OF the lhised eia.tNi
that several important questions q law anA
some OF great Intrinsic dinlcnlN arr M
vowed Ia the Construction 81 tc sa4d statutes anu %
the SAID indictment, and viii necessarily afse "a the
prosecution OF tiese proceedings. That IA Wow ~
the laes CHARGED sga.i's this aeieaaat am .e st
been found II desirable "a % u should be- Ia thls
deponent's pow ~ 10 obsas: should u become ncces.
sary the opinion OF the supreme contt 81 tne Iniei
states thereon. That under tac LAWS Of the United
States there is no mode Of obtaining SUCH opininn
except upon o certificate OF DIVISION, aud that no
such certificate can be obtained unless the Gauss
shall be tried before one OF the associate gusstces
OF the Supreme Court OF the United ssaAes sitting
circuit judge That II the cause be tricd before
OF the district judges oi the United states there
is authority for such judge TO assOciate win aim
any other district Judge on the rlal. ana that even
court would have no authority 10 make certificate
Of division, as before mentioned. That notice "
motion has been given herein on behalf ~ THIS Dc
PENDANT to Quash the indictment, bat that n TIE
cause can be tried before a fun bench vi circus
court suc motion WIN ne wsnarl ,S anu inc neene
ponent further says that great publicity has been
given TO the proceedings against tins defendant ana
the fact that an indictment has been ioand Mas
been extensively circulated, ana that such
publicity and circulation have been brought about
by those who instigated the said indictment. And
he further says that the charges against this defend
ant have been much discussed In the newspapers OF
the city Of New York and elsewhere, and thai apaa-
rently great efforts have been made to create pub
lie opinion in regard thereto unfav0rable 10 TINS
deponent. And he further says that he has reason
to believe, and does believe, that those who sti-
gated these proceedings against deponent have been
influenced by personal feelings against this defend
ant on account Of certain proceedings with which
this deponent Is professionally connected. That
in the discharge OF what deponent conceived 10
be his duty, arising out OF the professional
employment which he had undertaken, charges were
made against the District Attorney Of the United
States for the Southern district OF New York. and by
reason and on account thereof this dcponent has
CURED the personal iii viii and hostility Of said Dis-
trct Attorney and deponent is Justified in the belief
which he enertas that the District Attorney aiore-
said is thereby influenced even II It be unconsclously
to the prejudice OF this deponent and that the lva
ton in which this deponent has thus been involved
has assumed personal character TO q degree IN no
wise favorable to the due administration of mere
justice or public duty. Deponent further says that
the result Of these proceedings to the deponent
personally Is Of the greatest Importance; that
active practice in this city and its vicinity
for more than twenty years. That during that pc
ments have brought him prominently before the
community: that his character or reputation has
never heretofore been assaled that he has secured
the confidence Of those by whom he has been profess
sionaly employed, and withov solicitation on ms
own part, has been honored by an elevation to a
high judicial position, and he feels that II is due 10
those TO whose good will and confidence he
Is In good measure indebted for what
aver we'll &c 70 asef ap hos s
are still more strongly connected with hts own 10
meet and disprove the charges against him. He
pate himself from every charge which has been
made and he viii be ready and willing TO meet his
accusers ana 20 70 ira, q. any .e ~ smcn
Court OF this circuit.
In view OF all the circumstances OF the case he
believes 1t to be important aud necessary to public
justice the public interest that the trial OF the
Indictment herein be laid before such court, and
so far as he knows or believes no public interest
can be in any wise preudIced II his request In this
regard be granted. WILLIAM FULLERTON.
Sworn to before me this 10th day OF December 1858.
JOSEPH GUTMANN, Jr., United States Commis-
sioner Southern district OF New York.
THE STAY OF PROCEEDINGS vAcATED--JUDGE NELSON
vACATEs MS OWN ORDER on THE STAY OF PRO-
CEEDINGs IN THE FULLERTON CAsE--THE APPLIcA-
TIoN-THE CASE ORDERED TO BE PUT On TIE CAL
ENDAR FOR TRIAL.
The United States Us. william Fuize1ton--NEIsoS,
g. J.This is an application on the part OF the de-
iendant postpone the trial OF the until the
circuit Judge can sit in the circuit with the district
Judge, who now holding H. on the ground that df-
cult and important questions OF law viii arise on
the trial. that II division OF opinion should occur
between the judges the point or points could be
certified to the Supreme Court under the act OF
2Gth April, 1902. the only mode OF sending
questions OF law arising tine trial Of criminal cases
circuit has heretofore been confined, with few ex-
ceptlons, to the trial OF capital cases. and even IN
those do not now recollect an instance when any
division Of opinion occurred on the trial or certli
cate OF question 10 the Supreme Court. Generally
speaking, the motion IN arrest of Judgment or for n
new trial. which are literally INDUCED, affords SUI
fcient security against errors or mistakes at the
trial. division OF opinion may be certified on q
motion in arrest OF Judgment al VIII, AID, though
it cannot on the motion for % new trial. But where
there Is difference OF opinion on the motion for
new trial, such o direction will be gwen 10 the
case as will enable the defendant to obtain
certificate OF the division under the statute.
new trial will be granted and the cause
again submitted to the jury In the presence OF the
two judges and the question or questions regularly
certified. This has occurred in very few instances
in the Northern and also IN the southern districts OF
New York, and, indeed as far az can remember in
every case where serious and welLgrounded differ
ence existed. We think under these guards and
securities against error In the trial Of the current
and ordinary offences against the laws the contin-
gency or possibility OF a difference OF opinion be-
tween the two Judges on the trial does not present
that would justify us in interfering with the
trial OF the caNse In the usual way In conformity to
the practice In criminal cases. The temporary rule
to stay the trial IL therefore set asde and the
restored and placed on Judge Benedicts calendar.
So the case ut present stands.