New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1869-12-21
SHOOTING OF PATROLMAN sMEDIcK.

At the General Term of the Supreme Court
Yesterday beforc Cerke F. j. and Sutherland and In
graham j. j., the case was again heard OF Johh real
plaintiff in error against the People Inc counsel V
Real made motion that day be set for the argument
of motion 10 yacate the judgment OF the General Icr
affirming the conviction OF John Real OF me nIueI VI
Officer Smrdick. ExJ Judge stuart IN making oe
said that they would be ready TO argue lne
motion now, but that he was actually enghgeu ~ %
trial, and Mr. Graham, who was associated Win ni u0
MIR District Attorney Garyin said he understood mo-
ton for reaigument could only be made aler
granted and 10 obtain that reason should be assigned
that important matter had been overlooked or oe
controlling decision not considered through inc
Of the Court or the negligence OF an attorney. ~ wv
reason had been assigned IL was necessary suci mo-
ton should be made before the same ldehllcal SCurt
composed OF the same members-sO that theY might a
once Judge of The propriety Of granting such leave
Mr. Graham said the ground OF thelr motion was .hao
Judge Barnard had become disqualified ana 10 Would Nc
Tdcuousfo argue the motion before the Judge against
whose right sit the case they proposed 10 oJeS W
this motion they followed precedent set by the court
of Appeali I'm Oakley agt Aspinwall, In which Jndg
men reversal had been vacated because judge Strong
who had hken part ia the decision was disqualified Dy
commemorative They proposed to argue that the new
Sixth Artle Of the Constitution, the judiciary
became aw upon ITS adoption by the vote OF the peo
ple Tbataricie forbade Judge to in review OF his
own actUls in inferior Court. Though IN juno the
Court wasvalidy organized yet by me au0puom w
delivered asst week was therefore Invalid. .,,,o,
Mr.. justice Ingraham suggested II there was anything
III point could Do taken OH error to the Court VI
Appeal us, .o,d that ,nev had right to raise the
MIR Jnssce Ingraham said the trouble was the Court
didn't think the Constitution had gone into elect
Mr. justice sutherland suggested that II mat Judgment
WAS void &c Court itself nudity, ana It's decision
on the mOIOn would he void.
Mr.. GRAHAM acknowledged that they should follow
their rstargument by argument that the Court he
since OptiOn OF the Constitution was unauthorized
and invalid =, -
Ex.Jude Stuart said that 1t might we'll be that the
Court wa continuing Court not abolished by the Con
stitution Organization In particular case might De
invalid fr that case $1,000,
Mr. Grham SAID that when Real was brought before
the Govt for sentence and asked what he had TO
say wly,entence should not be pronounced he would
present bis argument through his counsel IL was de-
sirabe that the argument OF the matter shOuld
take plco beforeths occurred. IL was no I'M
usual uing for Court 10 hear an argument
that 10 had 10 power I'm q certain matter IL
was in fact, the only way TO avoid mob law. 1t
wOud mt do 10 say John Reals friends, there Is no
warrant'or OBTAINING him. take hun from the Tombs as
Won can The matter must be argued properly and n
judicial ecsion rendered. After some further discussion
the mOtbn denied.
Mr. Caham then moved that the Error book be
amendetby making exception which he claimed they
had all RATED the argument having been properly
taken bit the OF which In the book the presld-
ing Jude IN his opinion had made tho ground Of dis
regarding. w,
ne5day ext