The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-03-13
+ o s r e r :,
His Life Lease LeDgthened by Another Stay Of
Proceedings Opinion Of Judge Barrett,
Of the Supreme Court, Granting the
Stay The Case to Go to the
Court o. Appeals.

William Foster convicted OF the murder Of Avery
d. Putnam, or. as he is popularity designated, the
car-h00k murderer. has had given him another
chance for lie. Judge Barrett, OF the supreme
Court, before whom was made few days since
motion for stay Of proceedings In order to allow the
to be carried to the Court Of Appeals. rendered
MS decision yesterday granting the motion. Inc
judgment OF the Court OF Oyer and Terminer con-
vcIfng Foster OF murder In The first degree, 10 Will
be remembered, was confirmed by the supreme
Court General Term, aud he was sentenced to be
hung on the 22d INST AS the Court OF Appeals
does not meet until several days after the appointed
day OF execution the granting OF TINS stay was OK
vital moment to Foster "A dernter resort that mas
saved him second time from the galiows the
following Is
JUDGE BARRETT's OPINION
This Is a writ OF application for q writ OF error
and stay OF proceedings to enable Foster to present.
essential for the That the Court does not ss
until the Goth INST, while tue execution Is liked ZOE
the 22d. This brings up the question whether there
Is any reasonable douot OF the correctness OF ting
rulings upon the Having carefully considered
General Term, my opinion is that the point sOughu
To De presented not so Tree from doubt as 10 JUSTLY
a refusal OF permission to argue 1t. Justice Card0zo
instructed the jury tnat this was either case Oh
murder III the first degree or mere manslaugntels
True, ne charged that under the Indictment the
Jury might find u verdict Of murder In the sec0n0
degree but this did not avail the prisoner as IN tn9
same connecion he ruled that they could not ind
as he subsequently explained, Ihat II the prnclpat
charge OF muruer In the first degree failed the
CRIME WAS REDUCED
to some degree VI manslaughter the precise
point was tnen DISTINCTLY raised 6y the exception w
the deceased by an assault upon him with deadly
weapon. with the intent 10 mann tne deceased, D1s
murder In the second degreen II those rulings were
correct them rs the learned District Attorney con-
coded upon the present argument the crime state6
IN this proposition Is reduced TO one oil the lesser
grades OF manslaugnter, and there IS no lntervel-
t... % for nm a
the law between that Of death In the case OF
Fermentation and thai OF very moderate tern qtt
is perfectly plain o state Of the law might
IN case ike the present operate uniavoraDiY otne
prisoner. Whether such Is the law depends upon
the construction OF the
sTArUToRY DEFINITION OF MURDER
in the second degree, Wnlcn Ii "kLun8
49, when perpetraied Without any design to
effect death by person engaged IN the y
the intent was to MAIN and nol to KIN. the pris-
oner was engaged IN committing not felony as ia
case OF death uninIentionally produced while en-.
gagged IN the preparation or felony OF rape, and
whether 1t was The legislative intention to treat
SUCH crime as mere manslaughier In minor
less n tna te o 1aee
hand, the learned District Attorney contends, and
my ore rem nave sd as the ie ny
the words, 'Other than that which produced
DEATH" The o,,,,ou. Or ,r, ,su,
are not unanimous upon the point The remarks OF
bronson, j., in inc People vs. Rector GO Wend.,
500, quoted by the presiding Justice, were 10 dis.
the opposite view, holding that the section then
Of severe criticism, and That the offence Is re-
duced to manslaughter IN the first degree
In all cases where the jury shall find tnat
the assallant intends to stop with the com.
mission Of misdemeanor. though tine blow
at page 6i6 leans the view OF Cowan, j., ana con.
cludes that 1.-THE Court ought not as matter OF
provision and thus have excluded trom me jury"
The dlcia Of Bronson, j., were disapproyed Of In
r as .0ur' r. 5 and Inc remarks Of parSer
upon pages GA anu CO. arc even stronger g, ana
lice Nesoa He saws nas he mus no warrant Tor
the position taken by Judge Bronson, aud that no
Seatn Wn e engaged IN an assault and battery 3
made IN the statute 'This sectlon" he adds, '.ls
made expressly applicable 70 all crimes and INSIDE.
| an assault and battery Is one. The statute no.
where confines this section and the tnlrd snbdlvi.
OF the section dennlng murder TO 0tnes offences
than those VI Intentional Violence" The OPINION
OF Judge Bronson Is also criticised and disapproveu
OF III other particulars by Judges DEMO and Selden
chapter go, 642. In the People vs. Butler q Part.
Y. r. SD Strong, r. j.. bases his Judgment upon
with Strong, while Justice EmOtt dissented. 1h9
case OF Dany vs.. Tne People was, however, entirely
or referred to III Tne People vs.. Sheehan az Part.
217 ana reason Il assigned for tine construction
Grover, j., says: elm the present case the record
shows that tho killing was done While the de-
IL VI q
leIOny OIher than arson In the first degree, and,l
second degree" The only felony disclosed by the
record, consisting. as 1t did, merely Of the indlcts
ment, CONVICTION, Judgment and afirmance,
was that which produced the death. Subsequently
the learned Judge discusses the presumpttOnH
raised by the record in manner indicating
that he referred 10 q collateral felony, and he
where distinctly qualities the expression "the
record shows" &C., by any suggestion that 1t was
made use Of solely upon the presumption Of u COLI
lateral felony. The Judgment in Inc People VS..
Thompson al N. Y, ~, was based upon the failure
mitted verulct OF murder In the second degree III
jury should 1nd the intent to be less dellberate
and atroci0us than "what was requisite 10 justify
a conviction In the first degree" The question or
intent MAIN was not raised and the testimony rel
erred TO by Grover, J showing that 1.-The defendant1
was not engaged in the commission OF q felony was
that the prisoner fired q revolver at the deceased
and the ball penetrated tAe auricle Of the heart
causing instant deatn" In tnis condition OF the
authorities it Is important tlat this
QUESTION, sQUARELY PRESENTED
as II s In the case at the bar, should be definitely
settled by the tribunal OF last resort In view or the
opinions OF Cher Justice Nelson and Justices COwan,
EmOtt and Parker ana the absence OF any clear
and decisive expression upon the subject from the
Court OF Appeals; III view. too or the general
policy of our lawmakers to extend rather than
the degrees OF guilt and especially considering
the PROVISIONS OF the act OF 1862 TO which this VI
1862 was anendat0ry, II Is impossible TO deny That
there Is at least reasonable DOUBT upon the point
presented.
Entertaining this opinion 1t Is my duty to gran,
the application.