The sun. [volume] (New York [N.Y.]) 1833-1916, 1870-02-05
DANIEL MFARLANDs TRIAL
MOTION TO RxMOvE THE ciSEIO THE
OrER AND 1ER6INER.


B'oauont Opps-ition bv the Deienderts
Counsel Argument of John Graham,
Esa.-Tbc Decision Reserved.
motion was made yesterday morning before
Judge Bedford in tho Court of General Sessions by
the District Attorney Mr. 0arvin 70 send tothc Court
OF Oyer and Torminsr the case OF the People 10.
Daniel Mcfarland. Mr.. Mcfarland was represented
by Mcssrs. Grah,m, Gerry. Spencer.
Mr.. oRAHAn oProsnp rHH MOTION
upon the following grounds. That the application
was too late. The Indictment was found the
iTll Of December last In this court, and the defend
ant was arraisntd on the 9ist and pleaded mot
guilty thereto there II therefore nn Issue joined,
aud the statute does not provide for the transfer OF
ANYTHING excepting the indictment.
2. The defendant has vested right to be tried In
the Court Of General Sessions. First- -Decauso the
District Auorn"y havin; selected the tribunal and
1rraigned hm before IT, he pleaded on srraisnment
aud thus acquicsccd In its seltction. Sccond-ln
the event oi hs beng convicted In the General Ses
slons, the appellate tribunal has by statute the
power to review the convection on ne facts. That
power does not ck,st In the event OF the trial being
held IN the Oyer and Tcrmincr. Third-Bcsldes,
should such
Conviction occua
in the General Sessions he would he entitled to =
stay Of proceedings, ~ matter OF course, until after
the appellate tribunal should review THO same.
whereas In the Ol cr aud Tcrmincr hU might have to
go doun on hrs knees before somc judicial iceberg
and sue for that to Which he would be entitled by
3. But, upon the es,h Of January last the Cour,
Of General Sessions, at the i6st,pce OF the
defendant entered an order directing the il.
sue of commissions to take testimony in BE-.
MALT OF Mcfarland. n tie case he sent
to the Over and TsrmIner those commissions are
substantially vitiated, and his rights contracted
FIRST the right to the commission Was given hun ~
statute @ r. 5 lCs3, Second, if the case be sen,
commission Is ynisled, because commission,
BY the law otevety foreign country and sister state
com mpuisorily the attendance OF the witness BY It's
own process. Hence, u the court issuing the com.
mission has N time OF its execution no iursdic-
ton OF the case In which IL Il issucd tho cath winch
the witness takes Is mere voluntary one and he Ia
not subjected to the penalties tor perjury. Hence,
any consent b. the District Attorney to transfer the
pending commission to the Oyer and Terminet in /.
acls
PERMANENT INJURY OK n'TARLAsp,
because i depryes him OF the rsht TO obtain tesri
mony under the sanctity OF au oath. by vtiatng tie
obligation under which the oath Il taken. In other
words, the obligation TO testify truly s then imposed
by eonscn, Of tho parties and not by the suIhoriza
But the statute itself does not Authorize the CON.
pulsory removal OF this case First. prior 10 1855
the Grand Jury could indct IN the General Sessions
for all felonies and mlsdemcanors, but the Court
was obliged to send those Of higher grade Of felony
second. In fs5s-usws OF isSs ch 93Tl-tbc Legisa.
turs passed an aA dclcgaiing the same power to the
Court OF General Sessions 'S to ~ oasHfs. tSbsr
Oyer and Te'mlatt 10 send ali indictments TO the he
Court ot General Sessions II did not co1rsrso.
tLorze the Court General Sessions conIpulsorily
10 act Tue case Is therefore edus1s OHiSss under
the statute OF 1855.
ruE DISTRICT ATTORNEY,
In reply, argued First slthoush II was true tba,
the order Was dui EN- cred autAorZinr the commits.
stone, yet 1t contained no stay Of proceedings; the
interrogatores have not yet been settled nor have
the commissions been issued. second, II was very
true that the sixth section OF the suO-tute referred
to OR. s. p SD is compulsory only as to indict-
ments not trable in the Court Of General Sessions,
hut the neat section allows the Court In ts discre.
ton to send oil indictments to the OYER AID Terni-
been settled definitely in the case OF the People agt
Gray 40 Wendell. p 6is.l
MR. GRAHAM, ANSWERING,
insisted First, assuming the Court to have the
power, ITS exercise - discretionary. Second TO
woke that discretion, nO,hIng but the mere wish
preference OF the District Attorney l. urged. Third.
on the other hand I. shown distinctly tnat by the
transfer, while the prosecution giin- nothing, the
prisoner /, deprived OF two substantial nights under
the staute, VIZ To review on the facts and TO
stay a. Of course IN the eN ut Of conviction. and to
the right to evidence under commissions already
authorized Fourth, nthoaf fh there IL stay In the
order granting the commissions, yet where. a. here.
that order Was apple Tor with tue utmost eIpedi.
ton, and the prisoner ha- been guilty o idchSs.
Wv V1,' t w! VIZ h9' hul''D " own OF yer nut an
he has thus cudcayorei 10 obtain. IiNb The ma
dictiyn OF the oyer and rcrnn cr is three.
fold. lat, original by indictment found tLcran: a.
that conferred BY the act OF isi5 and the statute
cited 81, 10y the transfer of the cause on the mo.
ton OF the de endant-an option of which he has not
ayaied himsoli IN tle present case, because
uE IS SATISFIED TO BE rBiEp IL rus COURT
sixth-In GAYS case the Indictment was fouod In
the Over and Trrminer, then sent to tho Genera!
Sessions thence remittrd bIck to the Oyer aud Tci.
miner. Bail WAS taken IN eacn court and forfeited
in ihe latter sad The qlG-i%ion % 5rosG on le ease,
to take bail afcr IL had Transmitted the raso TO the
General Sessions and tho General Sessions had sent
u back and tn supreme Court held that as the
oyer aud retminer had original jurisdiction OF the
cssc the bail bond was good. Seventb--rle pris.
oncr has right to insist upon being tried
before
The law gives him the right By perem otory cI,aI.
lengc. wthou, assigning Cause, to prevent juror
sitting as Judge OF the facts OF his case and sure
y where he is Indicted In tribunal presided over
by two Judges, In either Of whom he has perfect
cOnndt nee, he should not be deprived
AT rHK NERE CAPmcs or THg PROSECUTION
from having them to sit In his case especially when
that prosecution n the outset Of the case selected
that Court as the forum, IL WAS important to HIN
that his judges well as his jurors should be i'm
partial, and lis counsel urged that lac should not be
Transferred 70 uiouna eOmposeu OF Judges whose
functions embraced civil ~ wen as criminal cases
and "o1Jiqsf ,rhose conduct ppblf opinion In
cases than one had uttered bs protest The General
shown dignity VAS not inferior TO that Of the Oyer
aud Torminer. TIE hie OF the prisoner dependoi
the issue and his counsel In the discharge OF their
| duty, would not permit any infringement OF those
| rights without their earnest protest The counsel
concluded with am"st brilliant pcroration.
JUDGE BEDFORD
| asked whether the District Attorney ASSIGNED any
ground iOr the motion to remove the case or simply
| rested II upon the discretion OF the Court.
| Mr.. Garvin replied that. the trii Of tho caae
might occupy sOmo time, the ordinary busInes. of
| the Court might be intCriered with
Mr. Graham suggested that II tho Oyer and Terminer
anxious to try criminal cases and the Supreme
Court Judges 40 desirous of hguring therein, they
might better devote themselves TO trying the ori narJ
criminal cases and thus froe the City Prison OF
| sceking TO obtain Jurisdiction OF witch prOner
ly belong TO the Court OF uonoral Sessions. And II
there Is any question OF the latter tOurt being en-.
crossed 10y the trial OF this case, II was easy enough
Tor II 10 hold two Sessions inste I'd OF one.
Judge II GiOrd announced that he would reserve
his decision until Monday mornin: neat half pact
ten O'Clock. until which hour the Court adjourned.
| TUE POINTS RAISED
arc not only entirely novel, but have attracted con.
siderable attention In both legal nnd judicial circles
Mr.. Graham's argument Was Logical frvid, aud
| eloquent, aud was listened to with marked attention
by the largo Gnd intelligent Hudlcnco present, ana
the sketch We have gwen OF 1t truly fails to do il
| justice.