The New York herald., 1869-11-12
COURT OF GENERAL SESSIONS.


Kiel for Robbery in the First Degree-NIo.
tion for New Trial Denied-Judge Bed.
ford's Opinion.
Before Cunning s. Bedford, Jr. City Judge
On Tuesday last IL Will be remembered. that Wicker,
Adams ana Kiel. convicted OF robbery In the first
degree, were each sentenced tle State Prison for
the term OF seven years. Their counsel moved for
new trial before sentence was pronounced. The mo-
ton was denied, and ut the opening OF the court
yesterday morning City Judge Bedford delivered the
following important opinlon:-
People rs. charles Wicker, Fruns; Adams anI
Edardid Kie, Jointly Iadicted Jor robbery in the
Iust Degree ana Conrfcted Or that 0gence.-In this
Counsel in behalf Of Wicker bases his motion upon
the ground that the verdict Is clearly against the
weight OF evidence counsel In behalf OF Adams
moves Tor u new trial upon the ground OF newly
discovered evidence. The position OF the prisoners
ana the facts OF the case are substantially fol-
lows:-Wicker, Adams and Klel were Jointly indicted
by the Grand Jury for the alleged crime or robbing
Mr. Gustav Buran IN the latter part OF August last
@ Each prisoner was tried separately and convicted.
Klel was tried and convicted before my asSo.
clate the Recorder while Wicker and Adams
were, We're tried and :, convicted before myself Ia
az folows:-1he complainant testified that about
nali-past twelve O'Clock on the night Of August 30
was violently assaulted by several men, Knocked
down and ROBBED OF a watch and leather belt con-
tainlng 1850 IN twenty dollar gold pieces; that the
that ne was sure that Wicker was one OF the men;
that he did not strike MIN nor take any OF the money
but that he was with the others. Onlcer OR-lly
testified that as he was going up Bond street his at
tentlon attracted to the scene OF difficulty; he
saw several men coming towards him, and raped
for assistance; that ne arrested Kel and officer ou
arrested Aaams Wicker not arrested TIL tho
next day. Oilcer Okeilly further testified to the
fact than m hour after the robbery he found twenty
dollar gola piece ana portion Of the belt on the
SPOT where the complainant said he was robbed.
TWO witnesses George Heser and Elizabeth Heser
MS wile swore that at three minutes to twelve
oner standing on the corner Of Bleecker and Greene
streets and chat they and the prisoner went directly
10 l7o Greene street. where he, the. prisoner,
remained all night. Another witness, Ellen Jones'
also swore that the prisoner renamed at l76 Greene
street, passing the night in her company. This is
substantially the testimony. Tho counsel dld not
sun VI the case, but voluntarily submitted the facts
to the jury under .he Judges charge. The jury were
charged o. foows:-
Fr-As regards the question of identity "Did the com.
panan have Opportunity enough to identity the prisoner
that he cannot be mistaken II they believe thai he
Ing the ati set up in behalf Of the prisoner they
seoaaAs regards the question Of cedbity charge
was as follows lf they believe the witnesses tor the
that h sspSs was % on1 nGt
roIbed but that The was present that he took part
must be conyncea hqyeyer beyond reasonable doubt Of
h sn s
him but If they convinced beyond all doubt that the
su oah. ROBBERY The 'hss hrss
degree"
No exception whatever was taken by counsel to
this charge. The jury rendered verdict OF guilty.
motion s now made to set aside the verdict
solely on the ground that it is against the weight OF
evidence.
the case of Wicker as presented, is, to my mind.
clearly one involving questions peculiarly within the
province Of Jury-questions relating to the credl-
Olly OF witnesses and to the identity OF the pri.
soner are, undoubtedly, questions purely Tor the
settled that when the testimony Is Of conflicting
character and the jury pass upon 1t, their verdict
VIII nearly always be permitted to stand and Il does
be clearly against evidence or without evidence to
sustain II. it has been hed, and think very pro-
unless there be great preponderance OF evidences
against the verdict, so as to present OF uncom-
mon rashness on the part Of the jury.n
TO grant q new trial IN the case before me would.
in my opinion be laying down not only very dam
gerous, but, al the same time most absurd prece-
dent 1t would be, at once constituting the Court.
as 1t were, quasi jury, with the immense and un.
limited power OF reviewing at its Will and pleasure
every verdict based upon questions which should be
found and passed upon exclusively by q petit Jury
OF twelve fair and impartial men. The motion for
new trial In WlcKers case lS therefore denied
In the case OF Adams counsel bases his motion for
new trial upon the ground OF newly discovered
positively and directly to the fact that as he av
upon the ground Adams the prisoner, took hold or
his arm and took the watch from him." officer
O'Rellly swOre that "ne saw the complainant, that
the guard OF his watch was dangling his breast,
and the watch was gone" THIS description Of
the complainant by officer O'Reiy unquestionably
corrOb0rates the complainant's assertion that he
had been robbed OF his watch Counsel for the pri-
soner in moving Tor trial. offers the following
newly discovered evidence, TO wit:-sThat the pri-
prove, by girl residing at No. 1855 Wooster
street. that on the ngnt in question: and before the
robbery, tie complainant gave his watch to girl,
which watch complainant swears Adams robbed
him or" ON a motion for new trial, upon the
quires the prisoner to offer proof that reasonable
diligence on his part before the trial could not have
furnished the evidclce TO the court and jury. No
such proof has been offered; but irrespective OF
this and the omission Of Qher legal io.nislges on
the part OF the prisoner, It seems fQ me, before
eyfG y Is eonynoed aS9n newy o Cardinal
fact that the newly discovered evidence is SO favora-
Bile TO the prisonerln one word, Of such character
different verdict shoaj Sw tilal bs gfsansd. dCS Con-
siderlng the positive manner In which the complain
ais i9eils'.u the prisoner, Adams and also tue pos
l.iye manner which he accuses him OF holding him
by the arm and taking his watch, together WIN the
corroboratng testimony OF officer O'kely Is descrip-
paap 1Sn "a wsic srd was Ss aS h wsGn
gone, do not think that the girl offered as VIII
ness in behalf OF the prisoner would in any proba
Dlity, produce diferent verdict " new tral were
granted and therefore deem II my duty to deny the
notion
In conclusion, would remark, in refusing or
granting motion for new trial, upon tue q opnd
That the verdict IS contrary TO the eyMence, or upon
the ground Of newly discovered evidence, the court
should always have care anu be ever guided Dy the
consideration that in Its action not only the pris
oner's rights be not inlrnged upon, but also that no
injustice be done the people. There is a broad dis
tinction between the legitimate exercise and wanton
abuse OF granting new trials. Motions for new trals
based upon either OF the above grounds should be
granted only In the sound and honest discretion OF
the court when IL Is clearly apparent that the evl-
dence does not warrant verdict OF guilty, or that
unless new trial be granted 1t would necessarily
follow that manifest injustice would ensue to the
prisoner
Assistant District Attorney R;nnt proceeded TO
dispose OF the calendar. In number or instances
the testimony against the prisoners was not concu-
siyo Of their guilt bat the prosecuting officer placed
them before the lp1y, whose province IL was to
decide upon the 81 ~ or innocence OF the accused.
George Parker pleaded guilty to stealing guam
tty Of clothing, valued at s5, on the 1Sth of Octo-
Der, the property OF Elizabeth w jenkins. lie was
sent to the state Prison tor two years.
Henry Sewyn, who was charged with stealing s42
worth OF clothing tho 20tn OF October, from
Robert Davidson, pleaded guilty to on attempt at
grand larceny. lie was sent 10 the Penitentary for
one year.
Matthew McNaly, who was charged with pointing
pistol at Patrick McNally. his father, on the 2ili
OF october, pleaded guilty to assault and battery.