New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1869-12-14
THE REAL MURDER CASE.

Supreme Court Judges AUerSe TO New
Trial-John Real who tried, convicted. and SEN
fenced i'm the Court OF Oyer and Termner Tor causing
the death Of officer Smedck IN fIstaVe" IN Juy' 1906
has not been more fortunate before the Supreme Court
udoes two Of whom Justices Cerke and Barnard have
denied his sut as plaintiff in agt The People thus
preventing him. in so far that Court cam from having
a new trial Judge Cardozo disseDts from the 0pn on
Of his associates but however Souna ' th In rho
ears Of Real. Justice Cerke IN IN, opinion say
Tbs rsr nont taken bv the counsel for the liintlH IN
involves the question Of Jurisdiction. II appears
rpted I'm te Court of General Sessions the LIST Mon
day Of August, 1865 that on the Gth day 81 me sam h
mouth the said cOnrt ordered that the lbuelheh1
nt 10 the next Court oyer ana Termincr, 10 he hed
IN and for rho civ and County York there to DC
determined according to law; that on the lst uy %
February, 1862 the indictment was acc1ralngN ent 10
and received 10y the Court OF oyer aud 1ermurr 10 w
determined according to law, ana afer%ard on the on
OF February, the same year. at the SAN COURT ou
"A Jury for the purpose mpannelcd ana returhe'i' the
plaintiff IL error convicted oil nuruer ID lne hsl
DEGREE in the indictment was aleg a agn,t am;
Tie counsel for the plaintiff ia error states IN HS nst
point that not alleged that tue Session ol . co
after the 6th OF August, 1868, when the transfer
ring Of IL 20 the Court 81 oyer hnd lIT.i ,tI
made, and he says mat IL vas eohcedeu o W. '
thnt fhe Court OF Oyer aud Termuer sat ~ October
1868 ON referring 10 the Error hook cnhot no an. ,
such concession No douOt Mr. STUART coIsti wi
prisoner in stating his objections 10 the JuIlroh VI
the Court aGrus that Court OF Oyrrgnd iern.hcr sau
been held i'm the previous October aud he IL not contra
dcted either by the Court or the opposing counsel We
however alone bo guided by the record anu it m
that there appears we cannot iper ,a, N"at w.
and Tcrmiurr held IN October 1863 but on tht con
trary. he inferred that tie Colrt next arr lneon
Of August held IN February lsC wne inc PrlI"G
was tried But II COurS bad been hcl III OEtoOer uo
NOT think 10 was indispensable that he should nave nreh
then tried. Undoubtedly INC slaJlte 70 ~ ~ oo'' oI ~
directs the CD. section that the Court OI SESSIONS sh
send all mdcturuts not utabe mere 10 lle mex. N'io
Of oyer and TrrmHCr aud ~ me I.h seuo, 'iS Un9
applicable 10 TINS case, 1t says that the sald Court
may also by an order ,enG al i' L and
Lrabe before then' Wheh .A" JIG" , t,Nr T Trimrr
determined, 10 the next Court OF oyer ana ltrun1d
Docs i- necessarily require that the prisoner sal po
then tired that he shall 10, Dc tried at ALT III appears
to me that the language 0f the stltne does not peLemp
torily require thar the trla sli saI the ace ~ h
particular session. 10 shan lnuceh ne sent 10 hc
Court held next after the ne when the order OF trans
ference had been made; but weh IL say me'e W o
determined according 20 law IL does not mean men; at
that particular term or session IL sun rs in an o,er
eases leaves the control Of The calendar with the pesd
ing Judge and ho retains the power which every Juuge
Tor another term session. the exnccs OF the occa
sion or us justice may require The counsel Tor the pla-
tin in error refers MS QuimbO, appellant agt Inc
People which the Judge ho wrote one OF the Opinions
IA the Court Of Appeals remarks that the Court OF Oyr
ana Terminer In "a permanent and continuous court
existing In its appointed and stated terms But the
counsel If he had read farther could nave addeu tne
next sentence In the opinion IA whch tue Judge say,
, ltS ueCe5n,rU - ana %sir, s"bcing one Identical
continuous tr.buua-it has undoubtedly power like amy
o,oi ~ t, Stetber In originated there or was
transferred IL from any other coordinate or snpord,
nate tribunal. think this point, therefore, NOT wen
| viii apply 70 the second and third points,
| Which consider, consequently, equally untenable.
r cr,,rI for nj prisoner sscd permission 10 inquire
Of Nee IA patrnmuu aud on behalf OF the prose
cutiOn, what the prisoner said 70 MN ne dy ater no
was arrested. ThIs correctly OveTruitu Inc III
euded question applied 10 language alleged To have been
uttered by the prisoner 40 totally different nlne anu
| place when and where the oiieuse committed or
viru and where the declaration OF the prisoner was
made Tie lar uHgc WAS therefore no part OF thc res
0ese or of the declaration ]! unswo:n declarations OF
line prrpetIator of crime. after Eo had time TO consider
and cucOct excuse were tO bee received as evidence,
he would IN cases. be able manufacture an ayaila
Die defense for himself; II they not 10 be regarded
AT all by the jury 1t would be utter waste Of time To
receive them 40 all The counsel lof Tue ptnlH ia
error Insisted tie argument that the declarations
were admissible, on tue ground that the witness
| had testified IA the direct examination that tle
| prisoner had admitted first to him alone,
ON the arrest end again and again at the Sttii1h,
House the Captain IN lis presence mat ne had kIeG
smedick and having made these admissions, the counsel
cuntehded the prisoner was entitled to the benefit
OF any further declarations made IN explanation oil tle
admission a sub,pqU period, as some KIND Of couh
teractiyo Tor these admissions Ihe counsel quots tne
language o the counsel Tor Tue prisoner at ne tIial ~
follows: Now ask permission that may ask tle VII
ness what the prisoner sald next di{, lat te
meaning oi TINS was PERMISSION 20 AK the witness via.
reason the prisoner hrd Tor tbs act because IL was
a. tar rom Officer her'S testimony TO presume
! time Of the arrest, when lie admitted the
act Itself M that he SAID 10 the next day B4t mere was
such assumption Involved expressly Or lmhtuy; ia
| the terms of Tue proposed question: rus Question
not Tor the explanations, any OF tue hipu Ol .ho a
rest The COUNSEL the tIial wished again 10 ASK
the witness tEr prisoner az Tue 81 lles Me o
| admitted ms gait also mentioned thc reason Why ne
committed the olruse, suppose he would have Deen
!
snd he did not remember That the prisoner had stated
any reason the times he made the admission Yet, no
memory OF the witness this subject II he able 10
do So But, have said. tine proposed question did
press terms, to what the prisoner had said the
| day next after the commission OF the ohense.
McG, for the prisoner. was asked TO state
what deceased had SAID Ia him about the prisoner in
the latter part OF June about the LIST OF July 1868
THIS WA, prorssedy offered tie purpose Of showing
with other facts whether at the time or this occurrence
prisoner justified by the circumstances IN appre.
tr.,f flp al
that the apprehension OF danger Juses tue Killing
OF the person irom whom u Is alllehehued nave no
doubt that such apprehension gives rise To many OF
those shoOtngs which occur 50 frequently III law
less districts; need scarcely say the law has never
sanctioned any conduct but emphatcaly condemns
and brands murder ia the nrst degree The alleged
threat of the deceased WAS during the latter part
| OF June or the beginning oi July. The deceased Was
killed the Esd ~ the latter MONTH Inc law Justlnes
homie de ouly when actual attempt has been made TO
muruur The person committing t. or 10 commit any felony
| upon him. upon or in any dwelnghois e Ia which
such person is or lawful defense Of such person
his OI her, wife, husband, parent child master
mistress, servant when, AT tho time OF the attempt
there IL reasonable ground 10 apptehehd design ~
commit felony, 10 do some great personal lJuiy
and hen there Is Imminent danger OF tue accomplish
mcut ot such design. luJ apprehension oI previous
threat followed by overt act, does not justify hOm
eide repeat, Tue law prOnounces To he murder I'D the
first degree, WIe, At tht same ue' IL hOuS an cn''t
ua remedy the person against whom the threat made
to protect nim from danger reasonably unprecedented.
VI Inc remarks and the same course OF reason
ing apply to the sixth point Of the counsel or the
plaintiff N error. Previous bad treatment VIII not any
more thah previous threats, Ju'ty 'oi,c' ny law
affords redress the one, as II affords remedy Tor tue
Othcr ad IN neither cast j. the person lJueu OF hIcal
| entd TO De his own ayerger. .
Vii The counsel for the prisoner. at the trial. asked
the witness Rowe, From what you saw NJ hlm
that night Ctho night previous 10 the nurder) what
Impression DID his acts aud wOIds make upon your mhd
what impression as OF Lis mind dd his words
aud cOuuuC leave upon your mind T. TINS required tue
state, irOu his observation OF the "huIe IAN
guuge demeaor oil the prisoner his opinion relative
to general suundness ulsOundness OF his Uhe prs
Ouer's) mind The object III 1t was suppose, 10 snow
that prisoner al the time OF The cOLmS>lOn oi the
onensr. Was laborlug under dttirUm bemeHS This the
Court aiterwurd Expressly told ls COUNSEL he was at no
erty to SHOW and the wessa previously To the putthS
i M nAllnIIlN