The New York herald., 1870-02-13
The Brooklyn Watchman Muir
der Case.
Perry Admitted to Bail-Judge Gilbert
Backs Judge Pratt and Snubs the Dis
trict ACKNOWLEDGEMENT to
the "IslOOd- Tubs ,, Morris
Pleads with the 8 sThugs"
for His Own Life.


Hayes, night Waterman at Harbeck's stores. Furman
street. HIS Honor granted the application add nxed
The amount OF bah at $4,000. Below Will be foand
JUDGE GILBERrs OPINION.
This is application on behalf OF the prisoner TO
admit him TO bail He is under Indictment for mur,
der the first degree; he has been twice tried, and
on both occasions the jury were unable TO agree
upon verdict. Ills counsel now claim that these
dsagreemens OF the jury create such doubt OF the
prisoners guilt as enables him to be baied. The
power OF theASnpreme Court or OF justice thereof
TO bat IN ali cases whether 1t be treason, murder
or any other offence, s ndisputabe. lex parte
Taylor 8, .om. so. People vs.. Goodwin 8, G. II. X.
People vs.. Van Horne s. Burn. l62, Id V Baker 10,
Howard II. 5G7.) This power TO bal may be exer
c,sed either before or after Indictment whether the
power shsl exercised or not rests in the dlscre-
lion OF the Court This discretion Is not an arbitrary
put q judicial one, ana is governed by established
principles and precedents.
Generally speaking oall VIII be refused after IN.
:" N ny ease Deoauss
The Indictment makes q strong presumption
gd aad @ "a sa. ns nSs
OF justice. But where It stands indifferent,
whether the prisoner be guilty or innocent oall
People vs. Godwin, supra. THIS subject was dis
cussed by THAI great and learned anu upright Judge
the late Z. j. Spencer and his decision has never
been questioned, but has been repeatedly sanctioned
by tue courts OF this and other States Ceases Supra
People vs.. Linder le, CAL 533) lie says there Is no
certain xed rule Ia cases OF felony each particu
lar case depending on Its peculiar circumstances.
The object and end OF imprisonment before trial s 70
the forthcoming OF a person charged with the
COMMISSION OF crime and IL Is never Intended as
Toe party is legally ascerGaned there Is no ground
or punishment and IL would be cruel and unjust to
iDnIcL L. The law OF every free government est
mates personal liberty OF the most sacred cnar-
acter and lt ought not 10 be violated or abridged
before trial but IN cases where there are sIonX pre-
sumplions OF guAt.n This case occurred Hty years
ago The prisoner was committed upon coroner's |
asrea verdict OF guilty. On motlon OF mis- counsel
the jurors were pofed, when the third cue called |
expressed his dissent from thus verdict they were
again sent out, but were hnaiiy discharged, |
unable 10 agree In granting the motion 10 be ad- |
Iutteo TO ball. Chief Justice spencer further OBJ
Berves:"t appears TO me, from the facts before me,
tile conclusion Is inevitable tnat IL 10 quite doubtful
whether tae prisoner is guilty, and think It stands
indifferent whether he Is SO or not. must presume
that jurors are impartial and that Their final dis
agreement proceeded rom conscientious difference
in opinion to the prisoners guilt and am, there
FORE bound TO concluue that prisoner may be IN
pocent OF the offence. In such case, as under |
stand the law he IS emitted TO be baedn AS be-
lore remarked, this has never been questioned
hut, on the contrary stands on the strength OF
aus reasoning ana upon tne sanction ai ahorIea i
land In Inc case OF Taylor, supra, the principle
WAS approved cmphaticaly, and Mr. Judge Wood.
WI rtn ad-"Undoubtedy the true rule Of law Is
here laid down by the Chief Justice, and it Is ex.
pressed with his usual precision and perspcuity.n
Since this decision was made the work OF alnellOrat
ing the criminal code has been gong ana now IN
most OF the states OF the Union the right 70 Da even
IN capital cases nnesB the proof Is evident or the pre-
sumption great secured by express constitutional
provisions In our own state this right has not been
embodied In the fundamental law, but mas still been
entrusted 70 the highest OF original jurisdic-
1ion or the members thereof The duty OF aHordlng
and in determining whether the particular case
proper not, we may well adopt The constitutional
allow ban unless the proof Is evident ana the pre-
Aumpton great The case before us the DIS.
cs n inrss ade Nave ssea hsea
unable TO agree upon verdict the quit OF the
prisoner - clear, ana that the Jury could not nave
errOneousy excluded evidence OF the dylng declara-
lion OF the deceased and msdirecteu the Jury upon
the law Of the case and mlslcd them III reviewing
the evidence when the case was submitted TO them.
With respect 10 the exclusion OF the dying decara-
tion am Of the opinion that the ruling OF the Judge
(Pratt clearly correct The general rule Is that
Ali testimony inadnisslbe which nas not the sane
ton of judicial oatn- In the case OF declarations
made by person under the apprehension OF im-
pending dissolution Is an exception to the rule:
Ihe princlpie upon which this exception ls taken
is very clear and obvious 1t Is presumed that q
person knowing that his dissolution Is last ap-
proacning knowing that he sianas the verge OF
eternity and tnat he Is to be called to an immediate
account Tor all that he has done anl5s, before
Jnage Iron whom no secrets are hldn viii feel as
strong motive declare tue truth and to ABSTAIN
from deception as any person who acts under the
deviation from the general rule, that confines the
exception to the necessity OF the case. ana only
renaers such declarations admissible when tney
relate to the cause or death and are rendered Oh
criminal charge respecting 1t; nor then unless the
Court be satlsded that the party who made The
declaration Was under the Impression or approach
mg death, and was without hope OF recovery.
,tsIark Ev dence. 81. IS, Philips on Evidence,
Edwards edition, 2s5. 299l.
The only evidence offered FOR the purpose Of laying
Of foundation for the introdncnon OF the declara-
lows the evidence as already published Oh tue tria
1t neeus no observation 10 Snow that tais was wholly
Insufficient.
II would have been easy for the public prosecutor
to have given medical testimony as TO what would
have necessarily been the mental consciousness on
this subject OF person IN the condition OF me dc,
ceased or other more direct evidence OF the actual
state OF his mind on 'his point at the time the decia
ratlons were made, and 1t seems strange that no
made no effort 10 do So as the testimony of the
declarations would have been or vital importance
I have carefully pern5ed the charge OF the Judge,
anu find IN It no erroneous statement OF the law
on the contrary the legal propositions in the case
were presented to the jury with remarkable accu-
racy. precision and Derspicuity The pubic prose.
cutor Complains that the Judge refused 70 Charge
that murder was conclusive presumption from the
fact OF killing with deadly weapon. But tins never
was the Jaw. Express malice" which is another
design" under our statute always has to be
proved There are cases where such ''prenedtated
design may be inferred from the killing alone;
ing the homicide must De unequvocal. admitting
OF only one conclusion This rule manliestly mas DO
application 10 the facts OF this case. Nobody saw
the act done. The prisoner gave evidence to prove
that even II he rred the shot ne not IN condi
tiOn TO know what ne did, and the prosecution
proved his declaration that he had been fired at ana
ahat he had nred back. This evidence may have
Ane duty of the Court to submit 1t TO the
jury, and 1t was their province exclusively
I32 N. Y. X. 5ldl, is y signal Illustration Of
the true rule, and shows that II the rule con-
sdopted, CONVICTION world nave been erro. Yy.
neUus and would have been set aside. In that
Yates shot DOllce ODcef IHe circumstances
uneQuiyocal but whether 1t was murder or not
depended on tne fact whether he knew the person
ne Killed was an o1icer; and Ii was held 10 oe IN
cumbent the pubic prosecutor to satisfy tho
jury Of tins fact upon the evidence. have not
tune TO discuss the law upon tbs subjec. az
length. Suilice 1t TO Say that the existence OF
'.premedtated desgn' rs always acs to be proved.
Win respect TO the manner Of presenting the
facts by the presiding Justice and his comments
thereon to tie Jury. tnat IS subject wlth which
have nothug 60 do IL Is not suggested tlas ne ms,
stated the eViaenee. lie had right 10 present his
own OK eject, but alter all II was TIVE pro-
vince OF the jury to determine all questions % Tact,
and were The jury instructed. have not ielt at
3berty TO express any opinion as 70 the conclusion
30 which the evidence in the tends. For nari'
Yest reasons would be highly improper for me 10
do so. the prisoners counsel contend with great
eaSnestness that 1t IS wholly insufficient to imp-
cate his client. The District Attorney, on the oner
hand insists that the prisoners guilt was established
beyond q DOUBT Upon the latter hypothesis 1t ~
.i,ficuIt TO nerceve why the District Attorney gave
Al evidence the prisoners evidence alter the
hnt had been tired ana