The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-06-20
THE nGPEACHED JUDGES.
A Long Rigm ar0le Over the Course
of Procedure.
The GOycrn0r'S Action In the McCunn Case
Criticised by Counsel.
Argument for and Against Postpone
ment Of the Trials.

Argument for and Against Postpone
ment Of the Trials.
ALBANY, June 10, 1872.
After roll call this morning to which twenty
Senator's responded, the Clerk read the answer OF
Judge Prnde to the charges preferred against him.
He denies all the charges made. lengthy discus
sion followed between Senators to the time when
the trial OF Judge Prindle should proceed but 1t
was finally resolved, motion OF Senator ID. p.
Wood, that the trial be set down for Wednesday,
June 20, at four O'Clock p M.
M'cUNN's CASE
The remainder OF the morning session OF the
Senate was spent discussing the question OF the
message OF the Governor accompanying the charges
OF the Bar Association In Judge McCunn's case
when message II is claimed is not In accordance
with the requirements OF the judiciary article OF the
constitution OF the State the eleventh section OF
which reads as follows :-"Judges OF the Court of
Appeals and Justices Of the Supreme Court NAV
be removed by concurrent resolutions of both
houses OF the Legislature II twO-thirds OF all the
members elected to each house concur therein. All
Judicial officers except Justices OF the Peace and In
feri0f Courts not OF record may be removed by the
Senate on the recommendation OF the Governor II
twO-thirds Of oil the members elected to the Senate
concur thercin.n
Judge McCupnns counsel, said the prosecution
deemed it important that all the members OF the
Senate should be present during the trial. He
hoped some action would be taken to procure the
attendance OF every Senator. Under the new Ju-
dietary article this request was peculiarly neces
sary. The absence OF q Senator would be equal to
vote In favor OF the accused
Senator Woodn replied that he intended to ask Tor
Indefinite leave OF absence. He would acquaint him.
self, as far as possible, with the evidence pre-
sented, and ne hoped to take part in the final dis
to be IN A%Sy ali Oe on e Se
hoped no action would be taken to compel his at
tendance.
Senator Murphy inquired OF the prosecution if
they deemed that 1t was necessary for all the Sena
tors taking part in the final decision Of the case to
be present during all the trialY
Mr.. Peckham replied that II was not legally ne
cessary, but 1T was eminently desirable. Nothing
short OF personal examination OF witnesses, as
they appeared when giving their evidence, should
satisfy those who were to pass upon the case.
Senator Johnson again expressed the hope that
Otherwise the Senate might be called upon to sit
until the first oi January. He could not possibly
be present during the whole trial. His business
was suffering, and he would have to leave Albany
to look after 1t.
Senator Murphy said that he doubted not that the
trial must necessarily occupy many weeks. He had
intended to ask for leave Of absence, but he would
not do So although he had lately been under sur
gica treatment and ought now TO be at his home.
lie would attenu the trial whenever he was able TO
do 80.
N &. Moak, for the defence In the McCunn case
said that IL IL would suit the convenience Of the
Senate they had no objection that the testimony
be taken by a committee in New York. The printed
testimony now before the Senate, taken before the
Assembly judiciary Committee contained much
irrelevant matter that should be stricken out.
Senator ID. y. Wood hoped the Senate would not
commence de nopO to take testimony. The testi-
mony now before the Senate was taken before
competent committee OF the Assembly, and was
senator Murphy thought the request OF counsel
for Judge McCunn that the testimony be taken over
again was reasonable, and ought to be granted.
Part OF the printed testimony taken by the Assem-.
bly, committee could probably be used.
LONG DISCUSSION FOLLOWED,
involving the question whether the testimony
already taken and printed should be retaken in
open Senate or before the committee, or whether
the testimony taken before the Assembly Commit
tee OF the Judiciary should be used. Another point
there was preliminary question which they wished
to submit to the Senate for its decisions question
Judge selden, and for the purpose Of securing his R
services delay OF one week was asked.
senator Murphy moved that the case OF Judge
McCunn be postponed for one week. Lost by the
following vOte:-
YEAs-Mesrs. Dickinson johnson, Lewis Lord, Murphy,
NAYs-Messrs Adams, Allen, Baker, Benedict ChatAeld
Cock, Cock, Foster, Grahsm, narrower, Lowsry, McGowan,
mann, %inslow p WOOD, WSddiiH Wocdinm wagner "s's
Mr.. N. G. Moak then proceeded on the part of the
defence to argue the question Of the jurisdiction OF
the Senate. The question was not simply as to the
rights OF John II. McCunn but whether the consti-
OF Judge Smith, which the Senate propose to follow
Is not the present case. Counsel then proceeded
10 Teau al lenBtn from the smith Tie
Governor passed upon the case, assumed the
facts submitted to be true, and called upon
the. party accused to prove his innocence. 1t
had been decided by the Supreme Court OF
the State that before man could be put on trial
he must first be indicted by some party. 1t is not
enough that certain parties shall bring charges
against man, and that the Governor, without ex-
animation, shall transmit the charges to the Sen
ate. An elective officer cannot be removed without
a fun and fair hearing The Constitution guaran.
ties that before an elective officer be put on trial
the Governor shall himself investigate the charges.
That course was followed
IN THE CASE OF JUDGE PRINDLE,
IN which the Governor heard counsel on both sides.
ernor has not recommended removal. The volu-
minons charges were transmitted by him to the
Semate s & on e pa same % gay .ney were submitted to
Counsel then read from the Revised Statutes,
and cited an opinion of Judge Bronson to prove
that the removal OF an elective officer could not
occur without the recommendation OF the Gov
ernor. In this case the Governor gives no intima-
ton that Judge McCunn ought to be removed.
Judge Van Cott replied, contending that the crti-
was purely a verbal one The Governor was NOT
bound in absolute terms to recommend removal
The constitution did not 80 direc'. The Governor
instead OF looking at the mere letter OF the cons
tuition, had regard to its spirit. In the Prindle
case the Governors recommendation is Of quail
neg CHARACTER.
At The conclusion Of the Judges argument the
Senate took recess until four O'Clock
The weather here Is oppressively hot and this
fact coupled with pressing engagements on the
part OF some Senators, lead to the belief that the
session VIII not be lengthy en- one and tha possibly
dence ana report to the Senate.
Evening Session.
On reassembling A. Q. Davis OF counsel ror re-
spondent, said in the few remarks he was about to
make he was taking upon himself responsibility
and duty which he had not anticipated. This being
the law part OF the 10 had been left to Judge
Selden to present to the Senate; but that gentle
man was unavoidably absent. Nevertheless, it be-
ing very important question, he would be doing
great Injustice to his client If he did not
do the best he could with IL, and he would, In the
outset, ask the Senate to look at this question the
as II Judge McCunn were not here at all as II
no one in particular were here, as, whatever the /
decision may bc, IL fixes precedent for all time.
in such as this 7 This Is question Which
dvests itself OF all personality, and, consequently
should be thus divested. In what capacity do YOU
stand here You are here In the same position as