The New York herald., 1870-02-10
SUPREME COuAT-SPeCIAl TERM.

The Furman Street Murder-Argumrrt on the
Motion 10 Have Edwin Perry Admitted 10
Bail-Shnrp Criticism OF Judge praits
Charge by the District Atiorncy-I'hc Jury
HIisIed and the Rights Of this Prosecution
Observation-Disclosures OF nIr. Charles Spencer
Decision in the Case Reserved.
Before Judge Gilbert
The case OF Edwin Perry, The alleged assassin OF
cfncer Hayes, night watchman at Harbcck's stores
Furman street, Brooklyn, VINO was murdered on the
night OF December 20 last, came up yesterday morn
ing Tor argument Oh the motion OF Mr. Charles s.
Spencer TO have the prisoner admitted to bail. The
court room was densely crowded With spectators
Perry was produced in court on the writ or haDeas
corpus granted last week and appeared as uncon.
cerned as ever. When the case was called on
District Attorney Morris, addressing tho Court.
sad:-I see by the writ that II Ii made rcturnabie
before your Honor justice OF the Supreme Court
suppose that your Honor mad no authority III this
matter OF bah. lhe Supreme Court not justice
| OF the Supreme Court.
| Mr.. Spencer--l did not hear.
Judge Gbert-Ihc objection is that Justice OF
| the Supreme Court Is not the Supreme Court. The
| objecnon is ovelruled. Proceed with the case.
Mr. Morris SAID he could cite authority IN support
OF his Objection ana called attention the case or
Van Horn tBarbour's RepOrtsl. lie contended that
the writ must be returDane TO the Supreme CourG.
Mr.. Spencer-in my Judgment the writ has Deen
drawn by my associate with perfect pIopr.cty IL
orders that this defendant be brouont before OF
the Justices Of the supreme Court. NY rule in
twenty-three years practice mas always been to
make It reurnabic before one OF the Justices ol The
Supreme Court, and have had writs OF Gtat Kind
passed upon by every justice III the First circuit
Judge Gilbert Intlmated that further argument
would only be "a waste OF time, he could Issue
new writ and have IL returnaoIe N tae supreme
Court.
Honor the petition upon winch tnis application
based sets forth tnat the petitioner Euwln Perry,
mas Ueen confined in the county jail OF tns county
since the 29uh day OF December last that during that
time he mas been twice tried ior the offence upon
which he was committed; that on each OF those trials
the jury has disaxrced ana tne pettlO1 sets forth
as matter OF TACT, that upon tue last trial cigat Of
the jurors were lor verdict Of entire acqulta 1ne
petition also sets 1orth that he Is il man OF
humble means; that he has a wife and SIX
children dependent upon him for support,
and an sra% prays s,,, your as Monor ~, TO admit hun
you may think Just. Now may 1t please your
Honor have a word 70 say by way or opening TINS
motion don't thDk, sir, that a Dreceueut can be
found IN the eatlre history OF the administration Of
criminal justice IN this state where person tired
ing has been refused bail. In il ease Of TINS gray
Ity nine hundred and ninety-nine times cue
OF thousand man would be discharged
upon his own recognlZance after tue second
tria. Alter a man mas gone through thus ordeal
twice with his lie hanging upon the vesuict OF u
jury Of his fellow citizens ana district attorney as
able AZ the District Attorney OF this county haa not
been able To convince either OF these uries Of his
quit, could almost ask the District Attorney were
not aware THAT bis feelings were e.gageu In TINS
matter, To mCNe Tor % nolc piosequi. he man
ought never 70 be tiled again. IL Is proper for me
dressed 10 your Honors discretion, III addition 10
the fact that clglt OF the jury were Tor hI5 mais
acquital see now IN court the foreman OF tiiat
JuIl-a gentleman wei known, honored and re-
spected IN this cy-and he gives me liberty 10 state
THAT, Wnie he was one OF the minority, III no event
should lie have come 10 any CONCLUSION oLher tnan
verdict OF Hlnsiaughter IN the tnrl degree IL
seems to me, therefore tnat | stand here with
almost the entire jury TO sustain me in the making
OF TINS motion.
Mir Morrs--If the Court please the very state
ment that the counsel mas just made is sufficient to
a Tor hnt n.
Dut II this case Dy any Judge by any court left
TO the jury IN sucn shape tnat any intelligent man
coud consider ior lnoment the question rs to man
slaughter III any o. the degrees, 1t s sucent 10 es-
tablish the 1acG that the Law has not properly been
charged by the Court Now, tins motion ls based
simply upon the ground that this man has been
twice tried anu twice tne jury have disagreed, and
the counsel states II never occurs that where
a person is twice tried and the Jurles
disagree that ban is refused. III cases
arising in tais county since ! have Dcen
District Attorney luries have twice disagreed, bail
mas been refused, pafties have been tried and con-
vlcted and are now III state Prison. IL is not uli.
usual at al for parties 10 be tried the thrd time
anG this Is not question as TO whether the parry
mas been uied once, twice or thfec lihies Dnt lhe
question ~ upon the evidence III tue case. u IL
proper case Tor Dalf That s the question. Now
propose 10 show your Honor that ~ - not proper
case TO ball Ihat s just what propose 70 show IN
ths case. IT IS case OF great importance 70 the
prisoner, aud IL IS OF some little Importance to the
community. And propose TO show your Honor that
this case was submitted to the jury under mistaken
ideas of the law ana which your Honor Will say were
mistaken ideas OF the law. propose 10 show that
evidence Ia this case was ruled out wnich should
not nave Ueen ruled out, and when your Honor VIII
say should not have been ruled CUT anc material
testimony IN THIS case.
judge Gilbert supposed that Mr.. Morris was cor.
rectwncn ne stated that the fact that the Jury had
twice disagreed was not matter or great moment.
Has Honor, however In consderin. THIS application
should not LOOK beyond the indictment ana whe thcr
presumption OF the prisoners guilt was raised by
The evidence. lie also thoughi it was not proper
Tor hln 10 inquire as to the propriety OF Judge
PratVs charge or the exclusion OF evidence.
Alter some lurthcr discussion Mr. Morris aaid that
the application had been based the disagreement
OF both Of the jutcs, anu II was for him TO show
thcy had laied 10 agree because OF the exclusion o
testimony which should have been admitted and
also that the Jury had not been properly charged.
AS 70 the question OF the degree OF the crime MT.
MOTIFS baid tDat tine case was one OF murder IN the
nrst degree or nofhlng There was no prc,ence Of
neat OF passion aud no evidence to show uything Of
tno xlnQ, no qualifying circumstances. ar. Morris