New-York tribune., 1872-06-21
JUDGE MCUNwS CASE.

OPENING OF THE CASE BY BURTON N. HARRISON
THE TESTIMONY TO BE RETAKEN, AND A
LONG TRIAL PROBABLE-ADJoURNMEN IN
TIL NEXT TUESDAY.
ALBANY, June 20.-The Senate met again
this morning, and proceeded with the hearing in the
case Of Judge McCmn. Mr. Murphy, from the Commit
tee Resolutions, reported resolution conhning the
discussion OF all questions the part OF counsel TO one
counsel each side, neither to speak more han ~ in
utes on any one question, which was adopted Mr.
Sears asked TO be excused from attendance but oppo
| ton being shown, he withdrew the request.
Mr. Parsons in the absence Of exJudge Van Cott re-
sumed the argument OF yesterday and moved that the
Senate accept the testimony it came from the Coy
ernor. He claimed that the Senate was not sitting as
court aud could not therefore take testimony OF ad
minister oahs proceed with the trial as in court OF
justice bur must accept the testimony sent from the
Governor as the evidence before the Senate giving the
accused opportunity to produce witnesses and be heard
in his defense he quoted from the debates in the Con-
stuOnal Convention of 1916 to show that the intention
OF the trainers of the Constitution OF that
year was, not that such cases as TINS
should be presented In a common law
court but simply the accused be heard In bis
defense In the case of impeachment there is ali the
machinery of court, and the Assembly are included as
prosecutors but in the Of simple removal no slch
machinery is provided. In Impeachment as soon as
articles are presented, the Judge is suspended from
vision made for the Senators either to take an oath or
affirmation imparally 70 try the case, to administer
oaths TO witnesses is provided IN impeachment.
Again. did not attend here until had received an
invitation from the Senate TO be present
the only prosecution being the action Of the
Assembly, which, through its Committee, made tho ex
animation and took the testimony, under oath which is
presented here Both parties present before that
Committee and were permitted TO introduce Witnesses
examine and cross-eXamine them, and make objections
and the accused represented by counsel, some OF
whom are here now, as well as in person. 10 re
examine those witnesses avail nothing. They
were examined under oath, and indictment for per-
Jury lies IL any were committed; and If any Of those
witnesses who then testified were now dead their tesi
mony would be perfectly competent. The accused may
now produce evidence in rebuta by affidavit or other
wise and may be heard orally in his defense but the
witnesses cannot he examined under oath.
Mr.. Moak replied claiming that the right 70 administer
oaths was inherent In the Senate.
The Senate then Executive session, and after
two hours debate the doors were opened and the Pres
dent announced that the motion Of the prosecuting coun
sci TO accept the printed testimony was denied The Senate
was is said, almost unanimous in the view that both
Houses OF the Legislature possessed the power to exam
inc witnesses under OATH The Assembly having dele
gated such power with the right to send for persons and
papers TO its Judiciary and other Committees, IL was
held that II could not delegate power II did not pos
sess and 1t thought to be satisfactory If not
faer the accused 10 aceede to bis request 10 hear the
evidence again. 1t was not however intended to
throw out the printed evidence which may yet part
be found necessary certain CONTINGENCIES of the
death disappearance of any Of the Witnesses
it admitted the Senate had not the power accept
the printed evidence prima aeie case, leaving the
accused the right TO dpTOve the charges If he could.
Mr. Davis said he held it Judge McCunns right 10
be heard here but he waived that right and was willing
to submit the choice of the Senate desiring only that
proper safeguards be thrown around Committee II one
be appointed Mr. Murphy said If the accused desired
Committee, the Senate would appoint one Mr. d. T.
Wood said desired the examination to be made before
the Senate Mr. Palmer willing TO aceede 10 the re-
quest Of accused. Mr.. johnson moved TO take from
the table his resolution offered yesterday relative to the
appointment Of a Committee, which was lost. Mr..
BENEDICT then moved that the Senate proceed with the
trial when Mr.. Davis asked that adjournment be had
till Tuesday He desired to leave the city in order
attend the funeral Of his brotherinaw at Medina. He
shrunk from the responsibility Of proceeding in the alb
sence of Judge seden. The request was denied.
Burton Harrison then formally opened for the pros
ecuton He said he8nd his associates did not appear
prosecutors but the invitation Of the Senate to aid
IN the investigation After rehearsng the circumstances
which led TO the present proceedings, in which he al
uded TO the fact that the Assembly unanimously
Cured in the report Of its Committee that John H.
conduct in Office as Judge of the New-York Superior
Court he proceeded 10 explain the charges made and
the OF the evidence he intended TO introduce 70
subsantiate the same One OF chief abuses illus
trated the Binnger the granting Of orders
and ininnctions arbitrarily both IN and out of Court
and sometimes opposition to other orders properly
granted by other Judges II his own and other Courts.
Mr.. Harrison then read the charges against Judge
McCunn, which are eight in number, and have been
printed before. taken from till y. m,
after which Mr Harrison resumed and went trOu g the
charges seratiB His narrative, which was clear and
concise, made an evident impression on the Senate.
Judge McCunn absent during Mr.. HarrisOns re-
marks The first case referred to by Mr. Harrison was
that of the recevershp in the matter OF the Binnger
and Clark property which s the basis OF the rst charge
,,l which he pronounced conspiracy on the part OF
Judge McCunn with parties who desired to deraud the
rn out Of their property and he charged that they did
actually lose at least $4,000. The next was
that Of Corey against Long, which is embraced
In the second charge Before eqnelGdius, the b9ur
Of 2 p. M having arrived, The Senate took
recess until p H., but, on reassembhngi
Mr. Harrison resumed his argument in which he stated
that Judge McCunn had appointed his brOherinaw
cever referred 70, and this receiver returned
no receipts vouchers The next that OF Mrs
Elliott against Mrs Butler, I'D CHARGE, IN which the
Judge appointed another receiver The proceedings in
this case the counsel said such TO warrant the
removal of the Judge The was that OF an at
tempt as counsel ad, 10 despOil Duncan, Sherman
Co., I4th charge) Of large sum OF money deposited
with them by the Henderson Cab Company.
The next that Of the "Fenian Fund" which eOun-
sci seized upon through receiver, and appro
priaed and distributed by the Judge 10 his friends and
others The next that OF Hicks agt. Bishop, in
which there the claim for 5OO and the Judge had
ordered defendant to be arrested and held 70 bail in
the sum OF $4,000.
When Mr.. Harrison had concluded, Senator Benedict
moyed that when the Senate adjourn this afternoon it
adjourn 10 meet again Tuesday at 10 Mr.. Par
sons stated that of the witnesses who had
anbnanaad had failed attend. hOued the Clerk