The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-12-21
TUE REAL MURDER CASE.
Another Attempt to Gain Time by
Dalliance.
Motion for Reargument Of the General Term
Appeal-The Now Constitution tho
Recent Decision Invalid Imports
ant Question = Motion for
Reargument Denied.

The General Term OF the Supreme court was ycs-
terday crowded to excess, the occasion being now
phase In the Real murder case, the particulars OF
which, 1t Ii almost needless to state. are by this
time but too well known. decision was recently
given BY the General Term Supreme Court af1rming
the decision OF the court below to the effect chat the
trial OF Real for the murder Of police ocer Smedlch
was fair and just and that the jury could not have
came TO any otner conclusion than that arrived A.
Judges Barnard and Clerke afnrmed tho decision.
Judge Cardozo dissenting ~ he held that the prs
oner was entitled to trial. Considerable inter-
est was yesterday manifested In the proceedings In
gard TO the manner in which the motion was brought
before the court. It appears by the Amendments 20
the constitution entitled the Judiciary aot the
Judge who tries q case cannot sit In the Court Of
Appeals. Judge Barnard presided at the trial when
the prisoner was found guilty, and also rendered
on afirmat0ry decision when the matter came to be
argued before the General Term. Every one present
In court yesterday bore the expression OF anxiety
and just as the proceedings commenced death like
silence prevailed. The court was composed 81
judges Clerke tpresiding). ingraham and suthsr
land
Ex-Judge Stuart said ne now moved the Court for
leave to reargue the case OF Real vs.. The People
upon the ground that two judges had decided for
an afirmance and one In favor Of granting new
trial. that one OF the Judges who affirmed the judR-
ment OF the court below was the Judge who tried the
at Oyer and Terminer; that the late Amendments
Of the constitution, called the 'Judciary aruole,"
was now IN OPERATION and mad been since it, ratn-
cation by the people, and which PROFIT blted the same
Judge who tried case taking part In the case upon
appeal and that therefore, no legal Judgment had
yet been rendered ct all; In other words, that the
decision lately rendered was invalid since one q
q tudOa yyh In n M Atu.
qualified from participating in the case when It
came before the court upon appeal Under the or
camstance he moved to reargue before judges duly
qualified according to the terms OF the new consst-
tuition.
District Attorney Garvln in reply stated that with
regard TO the motion Itself nothing could at present
be said but with regard TO the merits OF the mo-
ton, counsel for the prisoner must first obtain leave
for tile purpose OF making such motion. lie did,
pass upon the question. nor did he see how they
could get the prisoner into court again: The ques.
now proceed only on tho around that some matter
Of Importance had been Inadvertently overlooked,
the ON the that hal rem
dered the decision. He c0ntended that such mo-
iron ow to Gs S o.
fore, il che counsel for ths prisoner
present an utter bar to their proceeding.
But 1t discretionary on tho part OF this court
whether the motion was set down for any definite
day. At all events motion must be made for leave
to appear before the tribunal that heard and decided
Counsel for the prisoner said 1t would be ridcu-.
lous to argue the question before the court as no
Judges VINO composed It. and whose presence as :
member vltlated the organization or that court. He
lcounsell meant II that Judge were now present ne
pressly prohibited him sitting as member OF the
court He now asked that Gay be assigned for The
hearing OF the arguments In this motion thoy
followed the precedent set BY the Court Of APP
n n M
Judge strong, who had taken part In the decision
was disqualified n conssg@a yn n the SIKH Q,
the constitution had become law since the election,
although the court may have been legally constituted
error was made. He claimed that under the now
constitution the recent judgment OF the court was
the Judge who tried the case. This was
case OF great magnitude. as 1t involved
the the life OF human being: ihe counsel for
new sixth article OF the State constitution became
law upon Its adoption by the voice Of the people.
Now that very artlc,e prohibited any Judge Co slt In
review or his own actions IN an inferior court.
Under all the circumstances the Judgment Of the
Judge Ingraham observed that II there was any.
thing good In the objection could be taken IN error
to the Court OF Appeals
Counsel for the prisoner replied that that would
decide the question in advance.
Judge Ingraham was or opinion That the new con-
st'tuton mad not gone into effect.
Counsel for the prisoner urged that the case OF
Oakley OAK ", Aspnwan was case IN r n9,ns ana
que. When the prisoner was brought before tbs
court and asked why sentence Of death should not
be passed upon him he would present this very
argument by his counsel. IL was, therefore,
desirable that the question should be argued before
bis doom should be finally sealed.
Judge Ingrahan SAID that Real would not 10
brought up for sentence again. The matter had been
already settled, and 1t was only necessary TO fix tie
day for execution.
Counsel for the prisoner further commended that it
. was not unusual for court to hear argument
OF which under certain cIrcumsnpces 1t might not
have power TO dispose. 1t would not do to say to
Reals friends that there no warrant for detan
ing him. that they should therefore take him from
the T0mbs. Moreover, he claimed that the recent
judgment OF the General Term was under the new
constitution entirely exploded.
Judge Sutherland remarked that II the judgment
by the General Term was exploded the motion now
made was to explode the General Term. Q4aughtor.l
After some further argument by ex-Judge stuart
Judge Cerke in announcing the decision Of the
court, denied the motion.
Counsel for the prisoner then moved to amend the
bill OF exceptions. on the ground that an exception
was taken IN the court below which did not formally
appear upon the face Of the bi OF exceptions which
WAS stated to have been taken
The Court granted the motion, and the arguments
were set down foI to morrow.