The New York herald., 1870-03-08
THE FULLERTON CASE.
COMMENCEMENT OF THE TRIAL.
Motion for Its Further Postponement 0verruled-
Unavoidable Absence Of Senior Counsel,
Charles o Conor- A Jury Empane!led-
Opening for the Prosecution

and tnolr friends and the members OF the press
had been accommodated In the places most proper
and convenient for them, so that when the
doors were opened the crowd had to put
up with the seats outside the bar. The
greatest interest was manifested to witness
the proceedings. 1t was known that another motion
would be made for further postponement, in conse
quence Of the unavoidable absence, through illness,
or Mr.. Charles 0'Conor, q very warm friend OF the
principal defendant, Mi. Fullerton, and MS senior
counsel In his defence, and the argument of counsel
thereon was great point OF attraction.
Judge Woodrun, OF The United States Circuit Court
and Judge Blatchford or the United States District
Court occupied the bench. Mr.. Fullerton was early
in attendance and occupied q seat during the pro-
ceedings near Mr.. stoughton, who IN the absence
OF MIR. O'Conor, was the senior counsel. He was
further defended by Aessrs. Clarence A. Seward,
John Burrell, ex-Judge Porter and Mr.. Jencks.
Ex-Judge Pierrepont, United States District At
torney, calm ana irnperturbabe, but noting with
quickness and rapdity OF conception his demeanor
Of manner would hardly prepare those unacquainted
with him to expect every word and point OF has op.
ponent sat at table opposite the jury Mr.. Phelps,
his assistant, sat opposite to him, and Mr.. Tracy.
United states District Attorney OF the Eastern dis
trict whom he has associated with him in the con-
duct Of the case sitting ut his right hand Collector
EalIcy, the most prominent OF tI0 government
Gals connected witness in the case sat next to
Mr.. Phelps, while District Attorney Courtney, moving
In aud out during the proceedings took = seat from
time TO tme wherever he could get one.
NoIL PROS.
When the case was called District Attorney
Pierrepont moved none prosequi in the case OF
Daniel q. Blrdsall, one OF the defendants, on the
ground that the prosecution was satisfied that nc
was not connected with the other defendants IN the
manner supposed when tie Indictment was drawn,
and now desired to use him as o witness.
The motion was granted.
APPLICATION FOR A POSTPONEMENT.
Mr.. Stnught0n said-After consultation with my
learned associates we have thought it our duty To
move TO postpone the trial Of Mr.. Fullerton TIL Mr..
OConor, the senior counsel In the case who Is now
too Ill TO leave his bed and who earnestly desires to
be present snail be sufficiently recovered from H.
to enable him to be here. He earnestly desired
to assist in defending his friend. Mr.. F1lert0n, VINO
was ms law partner for ten years. against charges
which concern not Mr.. Fullerton alone but the pro-
fesson to which he belongs, the bench upon which
ne has sat and 70 some extent Inc State which mas
placed him there.
STATEMENT or CHARLES o'coNoR.
Mr.. Stoughton then read IN support Of the appli
cation part OF Mr.. OConor's aflidavit used upon
ago also the certificate Of his physician stating
his present condition and the time when he VIII
probably be able TO give his unrivaed aid in behalf
OF one whom he loves not the less because assalled
by dangerous and unscrupulOuS enemies, and
weighed down by the anxiety and anguish which
their attacks have Indicted upon him. Mr.. slough.
ton continuing, said;--We wish to state In addl-
tiOn to what ls contained In the papers, that there
never mas been q time until last Monday. when the
government could, with a suitable regard FOR its
own honor and the due administration OF public
justice, have tried Mr. Fullerton upon this ndct-
ment. Until then no TRIBUNAL was fltly constituted
for that purposes and such Is not conviction only
but that evidently entertained by the Attorney Gene
we Remember argnt he directed The trial to he oSst
p0ned until the April term, when II was no doubt
expected that Judge Nelson would have been Able
illness OF that great msgistats prevented this ana
the state Of his health and pressing engagements
also prevented him from sitting Tor that purpose dur
ing the last fall We have SAID that the Attorney
General OF the United States, acting under the senss
trial because because no tribunal sxsted during the pcrOo
Of snch postponenent appropriately constituted for
that purpose; and the solndness Inc Justice or this
action 10 manifest IN the constitution OF this
court to-day. The presiding jndge--or long expert
ence upon the bench, ol long and varied experience
cali to his aid associate District Judge not ct
the suggestion, certainly with the approval Of tue
sen ~ the nresdn" dvs ss sn. o.
the QOvernment-due TO the defcndant-or he Ger.
tainly would not have Withdraw the district Judge
from the xbsoro!ng duties OF Ms own court And
we can welpuuderstand why In . case Ike this, a
uslice-lovng magistrate should desire an associate
apon the bench.
in The Circuit Court OF the United States the De.
fendont III any criminal case can take no appea, Tor
the redress Of error committed BY she court how
Of pubc us,ae s ss submit 10
whatever rulinga are made aud II these uniawluily
ns must remain his efs aosss IL ne u
with two judges uDon the bench, II ques-
tions OF law arise--diflcnlt important, possi-
oily decisive OF the cause-they may DIVIDE IN
opinion stay the judicial hand before IL Is TOO late,
and certify the question RAISED. and their DIVISION
United states there to be nnaily dec1ded thus aud
thus only, eau the accused ootain the opinion OF o
higher tribunal than this, ana, no doubt this con-
sideratlOn has IN some degree influenced the pre-
formation Of this court. We repeat, therefore,
that as we have right to assume In the opinion OF
this court-fn the opinion OF the Attorney General
Of the United States-in the estimation. may say,
OF the prosecuting attorney himsef-untl last Mon
day no tribunal has sat IN this district it 10 try tins
case, ana II this be SO until that day no postpone
nent Was had except In the interest OF pubic jus
tlce-none which IN decency could have been denied.
On tnat day. upon grounds thought sufficient by the
counsel 1or Mr.. Fullerton to continue the cause
until Mr.. O'Conor would probably be sun1cicnrly
recovered TO be here we moved postpone
and now upon the proof we have read and In view
OF the fact that but weeks delay from the time OF
Mr. Fullerton, we ask the Court TO postpone Nils trial
for three weeks when as the physcianx OF Mr.
O'Conor believe he can bc here. Tns II an indu
gcnce which we think the Court will grant Mr.
OConor mas assigned TO himself an important duty
upon Tho trial. and no one OF us can perform II "
well nor is either OF prepared to do So. Hitherto
the illness Of counsel has been regarded suclens
cause TO postpone trials, especially where no detr
ment could happen from delay, and certainly tho
government can au1er mono mere; and II the expense
OF preparation be urged, we WILL defray that aud
imburse to the government alfit has paid. The
fession the world know inc value or the services we
seek; and ahould we 70 to the trial without asking
the Court for time TO obtain them, We might be
blamed n not condemned, for ncgleoting the aid OF
tnat distinguished man wac yearns to render ~.
We ask the Court for no unusual indulgence. The
supreme law OF the land guarantees 10 the accused
this ASSISTANCE OF counsel. Mr. O'C0nor has been
selected to sucn he Is prepared a. do So but
stricken with a painful disease, his strength Is
wasted and little, but very little time is needed
restore IT, On behalf OF our client VIC ASK, We urge
Court TO stay ths trial until Nh. OConor can ba
with us.1 Gill F6&
REPLY OF MR. PlERREPoST.
Mr.. PierrepOnt rose TO reply. lie said be had no
cognizance OF matters which occurred respect OF
the case before he was connected with Ills present
ofice, except what he found IN the public news
papers aud the records Of his department. But he
had read in the newspapers that several postpone
ments OF the had been granted already. IL had
been settled that Judge Nelson should try the case
the 7th OF June last but he then too III 10 DO
30, and he had subsequently been called TO wash
ington 80 thar he could not have tried the case he
hardly Thought the learned council. Mr.. stonghton,
would assume, on serious consideration, that Judge
Benedict Judge Batcnford were not ~ 20 Try tue
cake-he would hardly say thar.
Mr Stoughton--t said The Court was not 1ily con-
ssitutcd 70 try the case Till last Monday.
DIT PierrepoDt observed that Judge Nelson was 10