The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-12-14
The CASE OF JOHN REAL.
The Verdict for Murder in the First
Degree Sustained on Appeal.
Opinion Of the General Term of the
Supreme Court by Judge Clerke,
Judge Barnard Concurring.
DISSENTING VIEWS OF JUDGE CARDOzO

der Of policeman Smed,ck in tins city during the
summer 81 1903 The verdict ef the jury was guilty
OF murder in the fst degree, IS charged in the tn
dctment." The evidence in the case was unusually
direct and positive, fully sustaining the ver-
dict. But the counsel for the prisoner
had taken numerous exceptions to the rulings of the
court on questions OF law as to the admlssbNity
Of evidence raised during the progress of the trial.
and also to the final summing up and charge TO the
Jury by Judge Barnard. Another objection was
raised to the jurisdiction OF the Court u Oyer and
Terminer, based on technical point On these ex-
ceptions objections and alleged errors q writ OF
error was sued out OF the General Term Of the
Supreme Court, ana the cause was argued before
Judge 7. W. Clerke, presiding justice, and Judges
Cardozo and Barnard associates-the latter or
whom having also held the Court OF Oyer and Ter
miner at which Real was convicted.
Yesterday the court rendered its decision on the
alleged errors and also on the question OF urisdic
ton. The judgment OF the court was pronounced
by Judge Cerke in an elaborate statement OF the
reasons which led the tribunal to sustain the verdict
OF guilty and to decline to interfere with the execu
ton Of the sentence Of death. Judge Barnard con-
CURED in this decision and opinion OF Judge Clerke
while Judge Cardozo read his views at length dis
senting from the majority opinion OF the court and
giving as his belief that the verdict should be set
aside and new trial granted. The several opinions
containing the Judgment OF the court ana the dis.
senting views Of Judge Cardozo, are subjoined in
full and will be found OF interest.
OPINION OF THE COURT BY THE PRESIDING JUSTICE
r. W. CLERKE.
FfrSt.-The FIRST point taken by the counsel OF the
plaintiff In error involves the question OF jursdic-
tlon. 1t appears from the judgments record that
Sessions on the nrst Monday Of August 1853; that
on the 9th day OF the same month the said court
ordered rhes the g, r. sen. 70
be held in and for the city ana county Of
New York. there to be determined according to
ment was accordingly sent to and received BY the
Court Of Oyer and Terminer, to be determined
OF February, In the year, ct the sald court,
before Jury FOR tne purpose impaneled and
murder In The first degree, as In the Indictment
was alleged against him.
The counsel for the plaintln in error states in his
first pont that Is not alleged that the OF the
court when the prisoner was tried was the court
after the 9Th Of August, 1858, when the trans
errlng OF It to the Court OF Oyer and Terminer was
made, and he says 1t was conceded on the trial
that the next Court OF Oyer and Terminer sat In
October, 1868. On referring TO the Error Book l
cannot md any such concession. No doubt
Mr.. Stuart, counsel Tor the prisoner, in stating
ms objection 70 the Of the court .rs
the previous October, and he Is not contradictsd
either by the Court or opposing counsel. We, how
ever, can alone be guided by the record, and from
ali that there appears cannet infer that Court
OF Oyer and Terminer was held IN OCTOBER 1858; but
next after tue 9Th Of August 1855 A. w 1ns Sea
in February, 1859, when the prisoner was tried.
think that it Indispensable that he should have
been then tried Undoubtedly the statute Is Rev. st.
Courts Of Sessions sna SEND All ndie5mens n ns
trable therein to the next Court OF Oyer aud Term
ner there TO be determined according to law; ana in
the seventh section the one applicable to the
before US, says that the said courts may also by
an order TO be entered in their minutes, send
which shall not nave been heard and determined 20
the next Court OF Over and TermIner, there to be
determined according to law Does this necessarily
require that the prisoner shall be tried during the
next session OF the court and II not then tried that
he shall not be tried at all9 1t appears to me
that the language of the statute does NOS per-
emptoriy require that the trial shall take
odeea be- a ssn to tne nr OF ar ~. sna
when the order OF Iranserence had been made, but
when IT says there TO be determined according to
law" 1t does not mean then at that particular time
session. IL still, as on all occasions the
control Of the calendar with the presiding Judge,
sarly possesses Of reserving the or postponng
the trial for another term or session, as the ex-
The counsel for the plaintifr in error refers US
to Qumbo Apo vs. the People go N. Y Rep, 6Sl).
in which the Judge who wrote one OF the opinions
IN the Court OF Appeals remarks the Court OF
Oyer and Termlner ls permanent and continuous
court texistng IN US appointed and stated terms.n
But the counsel, II he had read further. could
have added the next sentence in the opinion, in
which the Judge says:-"its successive sessions
are terms Of the same, ana not distinct tribunals
and being so, being one Identical, continuous tri-
bunal IT has, undoubtedly, power, like any other
tribunal 70 reserve or postpone case for trial at
was transferred to from any other coordinate
subordinate tribunal
point Is not well taken; and the reasoning aud
conclusion will apply to the second third points
fq the nrsoner ~ tina ers:
asked permission to inquire Of Nee, patrol man.
and a witness called on behalf of the prosecution,
what the prisoner said to him the day after he was
arrested. THIS was overruled, and correctly over
ruled. The intended question applied to language
alleged to have been uttered by the prisoner at
totally different time ana place when and where
the offence was committed or when and where
The language was, therefore, no part OF the res
0estg or OF the declarations II unsworn declara.
tions OF the perpetrator OF crime after he had time
to consider and concoct an excuse, were to be
received in evidence, ne would in a cases be
able 70 manufacture an available defence for him.
and, II they were not to be regarded by the Jury,
1t would be utter waste of time 10 receive them
error insisted on the argument thar the
declarations were admissible on the ground that
,n n witness , rs haa tesihea IN the d,res. examna.
alone on the arrest, and again at the
to the Captain, IN MS presence, that no had killed
Smedicx; and, having made these admissions,
the counsel contended that the prisoner was en-
titled to the Deneht Of any further declarations,
made In explanation OF the admissions 1T a sub
sequent period, AS some KIND OF couuteractlve
Tor these admissions" The counsei, quoting the
as follows:-"Now ask permission that may ask
the witness what the prisoner said next day" in-
ssts That the meaning OF this was permission to ask
what reason tho prisoner assigned for his act;
becsuse IL was as fair, from oicer kee's testimony,
to presume that he said on the night and
at the time OF his arrest when he admitted
the act Itself, as that he said IL next day." But
no such presumption was involved, expressly
mphedly, IN the terms OF the proposed question.
This question sought tor the declarations OF The
next day, not for the explanations " any, OF the
night OF the arrest. II the counsel AZ the trial
washed again 10 ask the witness II the pri-
soner, at the several times when ne admitted
| his guilt, also mentioned the reason why
| he committed the offenco j suppose ne
would nave been permitted to do 80; although
the witness has expressly SAID he DID not remember
that the prisoner had stated any reason at the time
| he made the admission. YET no doubt, he would
have been permitted to refresh the memory Of the
witness on this subject II he was able to do But,
as have said the proposed question did not import