The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-03-03
S r O * e s
The Action of the Grand Jury
Sustained.
Extraordinary Statements by Pris.
oner's Counsel.
JUDGE CARDOzO's CHARGE
A NOVEL SCENE I'M COURT.

for the murder OF James Fisk, Jr., was raised, was
resumed yesterday morning In the Court OF Oyer
and Terminer before Judge Cardozo.
MI. McKe0n. at the opening OF the Court, said
that His Honor would recOllect what had occurred
on tine previous day among the spectators In the
court when he mad announced his belief In Stokes
innocence and MS ability to prove it, When he first
came Ia contact with the power OF
THIS RIB,RING,
some months ago. at Y0rkville similar scene had
occurred. He had reason to believe that now, as
OF that power He asked the Court to protect coun-
sci against them.
Judge Card0zo said ne thought he had heret ofore
taken the right course III the matter.
Associate counsel said that he was informed that
there was q hred gang Of twenty five men employed
to watch these proceedings; that they (counseN had
the name OF man on the Eighth avenue who was
employed to control these men in TINS matter.
EXTRAORDINARY STATEMENT.
Counsel, continuing, said:-When first they went
before the CorOner's jury, and were consulting on
preliminary points there was scarcely any one IN
the room. and while they were interested in that
conversation he had not paid any attention to the
audience; but, on looking up. had seen such gang
OF cutthroats that he sent at once to the
police Office for platoon OF police who
mad been furnished to protect them IN
the court room. He supposed that, in the
effort TO dispose of Stokes. these men would stand
at nothing, ana Stokes counsel might receive shot
in the back intended Tor Stokes. These men were
quite capable OF shooting. Stokes counsel had
been logged In the streets; there had been caves
dropping on their consultations they had had to
60 into corners consult quiet; he seconded the
request of his associate, Mr.. McKeOn.
Judge CardozO said that he thought everything
had been done for tile prosecution OF Mr.. Stokes,
and he would take any course to protect counsel
that might be necessary. II counsel really desired
any special means OF protection, and would suggest
it, he would furnish 1t.
Mr.. McKeOn said he had always lived among
thieves, robbers and assasslns, and he had no fear
at all OF what might happen to MIN IN the presence
Oi the Court lie did, however, lear what might
Knew that Dorman B. Eaton had been atlempted to
be assassinated, and, II IL was necessary to remove
any one OF them, tile same means should he en-
plOyed. He would ask the Court to direct the
Sheriff to place half dozen men among the
audience to control them.
Judge CardUzO, after consulting with the Sheriff.
said that tle Sheriff tod him he already had
DOZEN MEN AMONG THEM.
Judge Cardoz0 then read his charge, UNFOLDING
the present Indictment.
JUDGE CARDozO's CHARGE
GENTLEMEN OF THE JURY have given this case
ana thus morning l nave hastily thrown together
some general views, which Will state to you. me
tllue mas not enabled me 10 examine Ill tile 8uCnOr
Ties cited by the counsel. but ! have concluded to
decide this case without submitting to you any
question. The question, undoubtedly II one OF
great importance and difficulty; but although no
one can be confident that he Is right upon sucn
point the result OF my reflection and examination
Is sucn that l feel to be my duty, II q differ
ent view OF the law Is to be TAKEN to
leave 1t TO the appellate tribunals TO DO so.
not to be made IN determining question OF law I
sll think they may be considered 10 the extent OF
looking TO see whether some other and proper mode
n a
evil OF such consequences. The consequences 70 the
administration OF criminal justice OF a decision
INvALIDATING EVERY INDICTMENT
yet uniried which has been found since september,
1870. are so appalling mat one may well hesitate
properly enable MIN to avert such serious
misfortune. TO tnat extent only should con-
sequences enter INTO the consideration OF the
Election have been able l have reached the con-
cuslOn mat tue present indictment may be upheld.
Without going minueiy INTO the subject think
that In our State differing somewhat from the rule
laid down IN some other States, where very little
deviation from the statutes as to the drawing OF
courts evidenced, among others, by the cases OF the
People against Jewett, Frlery's case, and Cyphes'
tiOns there arose III somewhat different form from
what they are here presented, Is to mold most OF
the PROVISIONS OF sdcn statutes as those providing
J0r the drawing or jurors to be not mandatory but
dIrectOry-ln other words. that, as Is conceded by
perhaps distinguishes tnls case from the Maryland
one: 1t acquired jurisdiction, and that though 1t
acted not III strict compliance With what the law
prescribed, yet Its action SO far as
THE PUBLIC Is CONCERNED is VALID.
That there. are great irregularities no one can
doubt, but am inclined to tnink that they do not
impair the validity OF the Grand Jury. Undoupt-
eddy The District Attorney could not demur to the
seventh plea because then ne would have admitted
that the deceased had been EeJudiced hey 0nd that
prejudice which the mere irregularities might be
supposed to have occasioned. Now that all the evil.
bound TO say TO the jury that there Is no testimony
upon which they would be justified In finding any
ply from the irregularities mentioned. and that the
law, treating these matters as mere irregularities
does not deem the accused preJudlced thereby.
viewing the law as do the course that have con-
cuded 10 adopt can do
NO HARM TO THE PRISONER
because every fact which the evidence wOulu Justify
the Jury in finding VIII, by the reviewing Courts,
be assumed to nave been found III his favor. do
not 70 say a nave no dS u on s%me
disposition OF tnein Is the result of my best judg-
ment upon them. But | have no hesitation III say
ing that the result Of the principal trial shall rem
der review OF these rulings necessary, The ques-
tons here involved are OF sucn Importance, nitric
acy ana doubt as 10 demand a
STAY OF PRoCEEDINGS
to enable the counsel
TO PRESENT THEM
to the Court OF last resort giving to the prisoner
reasonable opportunity to prepare Tor the trial OF
the indictment. The course that have tnus con.
cluded 10 be the right one will prejudice no one but
Will protect the interests OF both the prisoner and
the people. wnicn IL Is my. duty alike 10 guard.
Carrying out these views l intend to- and do saw
To the jury, that all the actsnot inierences OF law,
out iacts-regardn1
THE ORGANIZATION OF THE GRAND JURY,
, botn respects the list and the drawing of
the panel ny which the prisoner was indicted,
which the plea OF the defendant has set up,
tnat nevertheless, the law says that that
has not occasoDed the prisoner any prejudice or
injury, and tnat although those facts are true they
90 not, In Judgment OF law, afford any reason to
support the DEFENDANTS plea and, therefore, IL Is
my duty to direct tue jury To Ind verdict Tor Tn
people on the issues presented.
Counsel for prisoner thereupon presented care
fully framed exceptions to the declensi0n or refusal
or the Conrt 10 submit the questions OF fact TO the
lury TO the refusal Of the Court direct verdict
ON the issues presented in favor OF the prisoner; to
the reiusalVf the Court to charge each and every
OF the written requests TO charge that they mad
presented, and specifically to each and every one
or the matters and illusions OF the Court In It's re-
marks.
Mr.. McKeon also excepted, specially, to the
Judges decision That the prisoner mad not suffered
any prejudice or damage, In FACT IRON the action
Counsel further insisted That they were entitled to
have the verdict OF the Jury given ny Inc Jurors