New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1870-02-14
TIE MURDER or WATCHMAS HAYES
JUDGE GILBERT DECIDES TO BAIL PERRY IN
$4,000.

JUDGE GILBERT DECIDES TO BAIL FERRY IN
$4,000.
Judge Gilbert on Saturday rendered his de.
cson in the question Of admitting to bail Edwin Perry
twice tried for the alleged murder OF the private watch
man Thomas Hayes. at Harbecks Stores in Furmanst.
Brooklyn, on the evening OF Dec 2sth last. The main
points OF the decision are as follows:
In the ease before us the DistrctAttOrney, IN vehe-
ment TRADE, insisted that, notwithstanding two jures
have been unable to upon verdict the guilt Of the
to agree IN either instance the Court had not errOne
ousy excluded evidence OF the dying declaration OF tho
deceased and msdreced the jury upon the law Of the
ease, and mised them reviewing the evidence when
the case was submitted TO them Win respect 70 the
that the ruling OF the Judge pratt was clearly correct
The general rule is that all testimony Is nadmsabls
which has the sanction Of Judicial oath The
Of a declaration made by person under the apprehen
sion of impending dissolution is an exception 10 The rule
It would have been easy for the public prosecutor 10
have given medical testimony as 10 what would have
necessarily been the mental CONSCIOUSNESS on s subject
OF a person in the condition OF the deceased or other
more direct evidence Of the actual state OF his mind on
this point at the time the declarations were made and
IL that ne made effort 70 do So as the testimony
Of the declarations would have been OF vital Importance
have carefully persed the charge Of the judge and md
in 10 no erroneous statement OF the Law. OE lho
contrary. the legal propositions IN the case were
presented TO the jury with remarkable accu-
catof onPans that the Judge refused charge TIA.
murder was conclusive presumption from the fact OF
killing with deadly weapon. But this never was the
law o"Express malice" which ~ another form o.
stating the idea OF premcditated design under our
statute always has to be proved There are cases whore
such "premedated design" may be Inferred from the
killing alone; STILL in such cases, the circumstances at
Tending the homicide must DE uuequlyOca admitting II
only one conclusion This rule manfestly has no appl.
cation the facts OF this case Nobody saw the act
done The prisoner evidence 10 prove that even
he fired the shot lac was not IN CONDITION TO KNOW Hhat
he did. And the prosecution proved MS asclsrauon
that he had been fired al, and that he had fired
back. This evidence may have been wholly IN.
satisfactory or Incredible, but II was TIE du'I OF
the Court to submit II 10 the jury and u was Their
province exclusively 10 determine lis effect. Tie
case of Yates 90 \. Y r., $40 is signal lllustra-
ton OF the true rule. and shows that If the rule con-
tended for by the public prosecutor had been adopted
conviction would have been erroneous and would have
been set aside In that case Yates shot police oeer
The circumstances were uheQuNoGa ou' Snsthsr y
was murder not. depended on the TACT whether he
held DC incumbent on the public prosecutor 70 satisfy
The jury hSxe 1 1n' fell ' At liberty to eI
press any opinion the conclusion TO which tue ey
dence in the tends For manifest reasons II Woli
be highly improper for me TO do So Ihe prisoners
counsel contend nth great earnestness that WHOLLY
Insufficient to imphcate his client. The DstetAt
toriey, OH the other hand insists that tine prs%srs
guilt was established beyond doubt. Upon the auet
hypothesis. it is difficult 10 perceive why tue DstetAt
hOnicde that lie had been fired at and fred Oacs.
This Iuanifesty created great embarrassment ~ deter
case has been determined, but IN seeking Tor mo
cause of the failure 1t is wrong to attribute 70 ,ls
rtlay OF the Court or TO any faut on the part Oh e
Jury some importance should be given to the omssoa
Of getting in the dying declaration, aud something
alloyed Tor the damaging effect upon the case OF ta
nrosecution of the prisoners declaration made aerth
homicide 10 doing this however. lt Is not neceSsafye
1
Attorney even though 1t should be deemed that ms
blunders referred to may have aided IN producing a
result of The trial In regard TO the statement CONTAINED
in the affidavit OF s. d. Norris relative to what Occurred
between the presiding Justice and himself lmmedsy
after the FIRST trial. fOrbear 10 comnent ms stateus1
NAV fifty be reserved for investigation elsewhere I
afdavits may be filed. and as deem the ,Ioe ~, ~
which il would be discreet aud sound exercise OF w
power to bail, the prisoner VIII be let 70 oaI hsel
accordingly in $4,000 with four suretles OF eo@pees
ability in 5000 for his appearance at the next Court"
oyer and Termiuer TO be held in this county
DIsTRICTsATTORNEY MORRIS AND HIS CORE
sPoNDENTs
The Kings County District Attorney, Who'
durng the progress OF the Hayes murder trial. received
numerous anonymous letters has published the following
characteristic note
DISTRICT ATroRNYrs OFYcE. KINGS COrSIr.
No COUNTY JOU.rIiOUsE. BkOOHLYS, FEB. ~ L'1l
To The Rire There's Cut Ihrodis end H"aFes o Ne" '"
GsNTLrSEx: have honor aekn'RleJge The ON,
powerful fraternity relation Edwin Pery, esd agd 10 ~
inform you thereto that that gentleman has 0eea d"
The DELAY in notifying you Of the latter Circumstance oce
entirely b nv Ignorance fore the oAea aunosne
Than y TO- TIE rent in Cherry Il TO "
ago will readily ard kindly the omission on my piH ll
t-,, your ansbe intentions forcihy and warmly er2rs
wan myself 10 the communications aresdy referred To-
heretofore Occasionally ep'Iei oy you ~ YOU. 4,
recently increase. 20 suen al ettea a. TO render
entirely aud absolutely sale hereafter 10 tsA NIse'e
o the ielouious taking Of human life; - ....,,,s
Having accomplished tha desired boweyer hsvug reeti
and imIauuy hereafter tor sh
Won nav DO perceive. hrssrs river thieves e'
that there absolute necessity At pesuL
Of my Insignificant life; snd es bens - a." 49,
med 10 indulge hope that will kindly permit me :" 'ei
time longer until again offend by attempting 10 orss
yuur distinguishes, members 20 justice. ,-a..,
Besides gentlemen a. your business il lou on, Of corr and n1
done court, will sot necessarily eonaei pesaEs' -a w. !.
necessarily quarrel more have TIE h"EoI %
myself