The New York herald., 1870-04-12
PERRY'S THIRD TRIAL.
The Murder of Night Watch.
man Hayes.
Desperate Efforts Of Prisoners Counsel to Obtain
Another Postponement-Judge Barnard De-
cides that the Trial Must Proceed
Day Consumed in the En-
parchment Of Jury

Edwin Perry the alleged murderer OF Thomas
Hayes, a night watchman at Harbeck's store, Fur
man street, Brooklyn, was arragned for trial third
time in the Kings county Court OF oyer and Ter
miner yesterdar morning. Judge Barnard and
Justices voorhees, and Johnson presided
When the case was called, John II. Bergen, or
counsel for defence, applied for a postponemens
on the ground that the senior counsel. Mr..
Cnas >. spencer was absent, being engaged
III the MCFARLAND case. Mr.. Bergen, In
support OF the application, read letter addressed
to Judge Barnard by Recorder Hackett setting forth
that Mr. Spencer was engaged in the Mcfarland case
and thai his absence from the court might cause IN.
Jury TO his clients interests. Mr. Bergen also read
affidavit sworn to by Mr. Spencer himself setting
forth among other things that at the last OF the
court he nad requested the District Attorney u nx
day for the trial during that term that the Dis.
trict Attorney refused do So saying that ne should
not try Perry tnat term.
Mr.. Bergen then said:-We were ready last term.
Mr.. spencer then at liberty try the case and
he asked the District Attorney to fix any day during
that term. do not feel that IT is right % place
upon me the responsibility Of going On with this
case alone.
DISTRICT ATTORNEY MORRIS
said that he had notified Mr. Spencer more thana
month ago that ne would move the case at the COM
mencement OF this term Mr. Spencer then in-
formed him that lie was engaged IN the McFar
land trial; that he expected it would come
on on the first Monday or this month; that
all he had TO do in that case was to make the OPEN
ing speech, and tnat he could then leave On Tues
day last Mr.. Spencer wrote him note saying that
lie feared then that the Mcfarland case would not
be opened that week. and he might therefore have
10 ask for one two days. delay. Mr.. Morris wrote
back to Mr. Spencer telling him that he would move
the Perry case on anyhow yesterday morning, and
that
THE M'FARLAND CASE
was opened he would understand that the arrange
ment was that this trial should proceed yesterday.
The Mcfarland case was opened on Friday. Mr..
Morris did not see how the interests OF Mcfarland
would suffer In the hands OF the remaining counsel.
MIR. Bergen Thought he haa presented q legal ex-
cuse.
Judge Barnard said that inasmuch as Mr. Spencer
had agreed upon yesterday he did not think tho
excuse sufficient to warrant postponement.
MIR. Bergen thought that Perry could not have
Judge Barnard said that II there was any sugQes-
tion tnat this defendant could not have fair trial
he would ike to have IL made manifest.
Mr.. Bergen explained by stating that he did
not think Perry could be properly defended in Mr.
Spencer's absence
Judge Barnard offered to assign the ablest counsel.
District Attorney Morris said that he should not
have urged the case on had 1t not been for the
raugement mentioned. He was satisfied however,
tnat Mr. Spencer could and would attend
Judge Barnard decided that the trial must pro-
coed, and the empanelment OF o jury was thereupon
the court room was crowded with spectators, and
when his Honor announced his decision consider
able
SURPRISE WAS MANIFESTED
among the friends of the prisoner. who were cong-
dent that the case would be postponed.
great deal OF difficulty was obtained In securing
jury and 1t was not until twenty minutes to four
O'Clock that the required number was obtained. AT
half-past three O'Clock
MR.. SPENCER APPEARED
In the court room, having arrived from New York
curing the examination Of the last Juror. The full
jury having been secured Judge Barnard was about
to caution them previous to the adjournment OF the
court when Mr.. Spencer arose and In address OF
some length urged LOT DOstpOnement until
next Monday, stating that his intimate
knowledge OF many OF the facts in the Mcfarland
case made 1t necessary he should be permitted to
continue IN that defence, provided he could do 80
without detrment to Perry'S Int erests. The Jury
hsd been drawn, the remaining panel could be DIS
missed and the witnesses and jury IN this case
could be notified to appear on Monday The inter-
ests involved In the Mcfarland trial were the inter-
ests Of every home circle in the land.
THE TRIAL MUST PROCEED.
Judge Bernard said that they must proceed with
the case this morning. The question OF postpone
ment had already been fully argued, and his Honor
did not think that the public interests would permit
any delay for the reasons stated The jury had been
selected and the witnesses were subpOenaed. and to
dismiss the jury for week would be contrary to the
rule Judge Barnard then cautioned the jury against
reading or talking about the case, after which the
court adjourned until this morning at ten O'CLOCK