The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-06-27
FOSTER THE MURDERER.
Application for a Writ Of Error and Stay Of
Proceedings Not Granted.
DECISION OF JUDGE CARD0ZO.

OEOAOAVN We JULIE O0nOV6Vs
Judge Cardozo OF the Supreme Court, to whom
application was made for writ OF error and stay
Of proceedings in the Foster case, yesterday rem
dered the following decision IL will be seen that
all the points of objection raised on the late trial by
Fosters counsel are reviewed by the Judge and
each pronounced untenable As this case
Is not appealable 70 the General Term
the only recourse to prevent execution OF the ex-
treme penalty OF the law on The 14th Of next month.
pursuant to sentence is 10 find some more compla-
cent Judge or nterposition Of executive cemency
on the part Of the Governor The following ia the
opinion OF Judge Cardozo which will be found both
clear and exhaustive on the subject
The People u.s. william Observation-Disclosures has
been made to me by the prisoners counsel for q
writ OF error and stay OF proceedings In tins case
right, 1t becomes nv duty to review the
grounds upon which the application Is made,
aud TO grant or refuse 1t according as I may
worthy OF consideration. shall briefly notice the
exceptions taken in the progress Of the trial In the
lions. The first relates to the special plea inter-
posed by the prisoner based upon the obec.
cannot be held by Judge assigned to sit in GEN
erai Term. do not think Il necessary to add any
thing 10 what SAID at the t n upon THIS point
In the Court OF Appeals dispOses OF that matter.
The next exception Is to the everything OF the chal
leMge TO the array The ground taken by the prison.
ers counsel was that the Court could not until the
nrst panel returnable on the arst Gay Of
ane er was MAKE an c older Tor
objection is uutenabe. The act Of 1si7, chap. 405,
expressly provides that after the deposit OF the
ballots by the County Clerk, as required by law, the
several courts IN the city OF New York "may order
as many jurors to be summoned for their respective
courts AS in their Judgment may be necessary sec.
9 1t will be seen that the order may be made at
any time after the ballots have been deposited, and
the question OF now many may be necessary rests
1t is next said that 1t was error to override the ap.
pilcaton Of the prisoners counsel to attach jurors
who had been personally served and did not appear
when called To this there are several answers
Flrst-That 1t does not appear that there was any
previously excused by the Court: bur II it did, the
question whether the Court would attaon him Is one
resting entirely In It's discretion. 1t Is matter for
the Court only. The counsel or the party has no.
thing TO do with 1t. The revised statutes provide
that the Jury shall consist OF the first twelve (who
are in all respects competent who answer to their
names. The counsel for the prisoner Is In error In
upon the prisoner or obliges the Court to
enforce the attendance OF juror. By read
the pa and $40, fifteenth win sections ~ ,es OF
that only power is conferred upon the Court to be
exercised in is discretion. The ruling at the trial
was correct as % the law and the discretion OF the
Court was properly exercised; Tor there Is no pre-
tence that any absent Juror was designedly Kept
away and it would be intoeraole to keep the Jurors
empannelled waiting while the State fOr the absent
jurors may have gone 10 various parts OF the Srate
was being secured In search of those who had failed
to attend, and VINO, 1t s not suggested, were likely
to be at all more competent TO sit than the many
who were rejected.
mnstered to George w. De La yergne, who was
called as juror and sworn witness upon chal-
enge msie by the counsel Tor the prisoner. think
there several reasons why this presents ground
for the present application IL was conceded by the
counsel for the prisoner that the OATH to use his own
language, "the same that the excellent clerk Of
the Oyer and Termlner has been administering for
I forty years. To this oath. thus used, without
objection, the counsel SIMPLY objected; and though
called upon to state his ground he omitted to do 80
until after the objection had been overrued 1t was
then too late But, moreover, the prisoners counsel
each challenge separately, and as the specification
OF the ground or cause OF challenge was not made
| ness, the issue could not be specified IN the oath
! otherwise than 1t was. II the prisoners counsel
he should have assigned the cause at the time OF
| challenge, instead OF challenging generally, and
have requested that the witness be resworn after
| the cause OF challenge was assigned. Moreover,
e Of Sn os was a. was ON
I the prisoners own application, and the prisoner
I could not have been preludiced.
The substance OF the examination OF Mr. McSwig-
gan Is that he had conscientious scruples against
finding verdict Of guilty where the punishment is
death, although he would, II sworn, try to do his
duty. lie was plainly Incompetent and was pro-
perry rejected upon the challenge OF the District
Attorney (Walker VS.. The People, 80 New York,
| 1901
The next objection is papably not well taken.
The question allowed expressly limited what was
said 10 what SAID in the presence or the prisoner
and was plainly competent. II the witness In
answer said anything which the counsel thought
was not present, motion should have been maze
TO strike 1t out. But what the witness said not
strictly responsive to the question was not import
ant, and he was stopped as soon as II TRANSFERRED
that Foster was not present, and was directed by
the Court to pass over everything except what
took place when Foster was present.
The next exception Is TO the EXCLUSION, as q wit
ness on behalf OF the prisoner. OF his vile. No au
thorty In support Of her competency was cited
the trial and none has been produced on the present
application. and 1t Is conceded that at common law
she could not have been examined. The counsel
argues that because by recent statute the prts
may at his option, testify on his own behalf there
fore the incompetency OF the wife ls removed.
prisoner at his option TO testify and the for
the rule excluding the wife remain unaitered.
stances in which husband and wife are competent
c0mpellable to give evidence tor or against each
other, and this IS not one OF them The Legislature,
therefore, evidently understood that an express
statute Tor such purpose was necessary, anu they
have not said by the act OF 1869 that the wife may
he examined, but have expressly limited 1t TO
tne person charged" and statutes In derogatlon of
the common law are not to be extended by con-
uness thew are so Inconsistent with that both
cannot stand together The rest of the exceptions
relate to the requests to charge. AS to the requests
presented by MI. Bartlett, which were not
Charged, l have to say:--rhe sixth, eighth,
nlnth and twelfth relate to the crime Of
murder in the second degree and were pro-
perry refused because there was no evidence in
the case calling for instructions rs to what consti
tuted that crime and, besides, the requests were
not In conformity with the law, 1t having been
settled by decisions OF the Supreme Court and the
Court of Appeals that to constitute the crime OF
murder In the second degree the death mrst have
been occasoned by the prisoner while engaged in
the preparation Of some felony other than
tnat OF the murder Itself. or this
there was no defence In this case.
IT. against their objection, had charged that the
evidence would Justify conviction Of murder In the
second degree, and exception mad been taken to IL
by the prisoners counsel IL was clear under the de-
sions that | should nave committed iaial error,
and II such an exception would have peen good. II
IL obvious that 1t was right to refuse 10 charge
that point as the counsel requested
As TO the eleventh request respecting the effect OF
MODIFICATION. think need only say that the refusal
to charge otherwise than 1 did and the charge as
given upon that subject plainly accord
Ing TO the ruling OF the Court Of Appeals in Rogers
case (8 N. " p ~ and In kenney's case (3l N. Y,
p. 335
in regard to Judge Stuart's requests-lp respect