New-York tribune., 1871-06-27
THE FOSTER CAsE-JUDGE CARDOzos OPINION
IN FULL
The following is Judge CardozO's opinion in
the Foster case in full notice of which appears under

The following is Judge CardozOs opinion in
the Foster case in full notice Of which appears under
our Court reports:
Application ha. BY the counsel for writ
ih-m night becomes da to review the stoaIds 9Po1
which the application made and 70 gren or refuse u
think the or Is not any pom! WORTHY Of S99.!Gn % 3 % m o sn,
IN which they stated in the bin Of exceptions -,
TIE ars. rgt. to t., % S ot s D5l ' c,Ino be- Be bT
Jude assigned General Tern, DO rot think 9eeesa 70
Mclrou at People (3 n Y ~. the Court Of Appeals dis
The next exception to Overrung Of the challenge the army
The ground by the prisoners counsel that the court on rot
~ % nae % @ ,r er Tor another panel No authority ted The oec
Don usnsbe The act Of Gi7 Chap expressly provides that
tie several courts The City oNewlork may or S naaf or' 20
nesslry' Sec ~ vii be tia. th order may be made at any
ny he 5ec,rv ycsts entirely in he alignment Of the court
Il SAID that override the Application Of the ps,
uo appear c8e To this there several fr;
a 9 so hot hsd a & Hi to isfg ad 6uE R, pg been PREVIOUSLY
e BY the Court But did, the question whether the Court wogd
attach him resting entirely in T. discretion matter ior ae
Court on The counsel Or the parry has RS'ns 70 90 & s @ y 5 b
.re all respects compeeu who onso TIER names he & counsel
tor the prisoner in error IN @Ppong ta. The act q s'g con
tennce Of juror b. reading the % and 18th sections Of that act
iCfap $50 that oy conferred unon the court
to exercised discretion The ruling the trial was correct as to
he iaw ana ne discretion OIL o a. t e', w. va 5riv rnt ssay and
u 90 pretense tn1i any ans os ~ ! ] vile lie Stlte
not .age.t- were likely all competent to s' than the
many rejected. ...-.,.,u II,
obe %
ch male by the counsel for the prisoner think there
vas coneead o ln csle ] ,p @ We We f cIe Of he o. and
own language Ws tH ne "a a. ~ ,S T it, .T ~. 49,.
without objection the counsel simply oee and tRo1gh called Upon
overrule It then too late But moro7er the prisoners ouns
ei. Sd H0t even s & and .. the sSecseson Of tie ground
Of challenge vas not made until a the juror ha been
than twas tbe prisoners counsel wanted the oath 70 refer lie
cause challenge lie should have ssga the cause 81 The time Of
b4eage instead Of challenging geEera a9d '9ung ih ground amer
he oath or shou lave requested tha' tie wi be- resson
o1 o one @ as % to whom The obecou @ oath taken
% ,, S.sa % 'Sf Sr.Rase Ree T Stsas Of the exam nation Of NJ
d 5 ss1 b !, SI. S IS aahSs 1 dest5 aas would n W
1po5 challenge the DtcAtoney ("aAer ast The People
expressly limited What was sad to "ha was I s1 the P9ee & o. te
@ rb be course though. material and which occurred
rrjnsr present motion should have been made to strike 10 ou
Bu the witness said no. ,trcy responsive 70 ne question was not
important and he stopped as soon a. II tnsld nat Poster vas
except place when Poster Pre.ent"
The uer eEceion : 90 me eIuou q, "p g IS on Osn ~ @ s
cited on tie rial .7d none Las been p9.uea ou G
The counsel that because By ce9t s'1taie the prisoner my a.
wife : removed (Laws OF 1852 only allows the
prisoner At his option testify an the for the rule excluding
The statute Of 81 Chap e8 has speei which
husband a95 o gs 'f end @ nst 10 one OF b The Ie there
fore eydn under.tOO that statute for such 0-poe vas
bs ersnne Rave expressly limited to me eharged"
WORK rpeal o.; common w rule Unless tey sre so
no together The rest Of the
ceyaons rsse 70 the requests to charge. .
n the requests prn Bartlett which not charged.
have TIE 9Th and 18th rele 10 the 0f murder
In second properly refused because there
evidence n cOnst ute that
vito the law t having been settled BY decisions OF the
Surrswe and Of Appeals, that % eOnu-
tut crime the second degree tie death must have
the prisoner while engaged 1 the peetruon of some
fsn IN ts Gaze r. against objection had charged that the
ence Justify conviction murder the s5t55. teyIee and
execution had be en- talel to b. tie s counsel vas clear
should
would h9e been goi j. obvious ai vas Hgai 20
refuse se 81 That point the counsel requested
eleventh eles. respecting the sf,et of on thlE
charge as upon that subject plainly according the
ruling Court Of Appeals RogeEss 3 n l. p " aud u
KeuTeT's eEse 81 n y 53Jl
In regard to Judge requests; In respect TO the refusal
charge proposition need only that time has defect
in the Indictment charging th crime Of murder the first
been pointed out ne, have discovered myself In
tri (which refsedl Il be
remarked that | hal seady at lis request charged that
degge " Of the aelugler proposition
which repeated charge, telling tie jury heg had the
power the prisoner guilty Of homicide less than the
the third anything than
thus and charged that there evidence
establish the crime murder the second degree and
certainly night 10 refuse charge
the subject Of and fully
disposed have dv made upon that
reviewing the requests presented By NF Bartlett
the which the
pT ,JeFs counsel incorporated b although
r o ne on tbs sDprvson II thought thai o much As fr
qns them. slOgI hesitate
wit careful and a5s0nate reflection with :u conscious
fs, unable that there
knowing bow
not bera the tra conducted and still believing that
verdict xcep. that Of murr the could
ughtuy have been found feel It my dy deny the application