The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-03-21
M YOR Fl ALL.
The Question Of the Jurisdiction OF Judge DAILY
to Hold Fresh or Extended Term Of the
General Sessions Getting Complicated.
THE CHIEF JUSTICE I'M A FIX.
What Recorder EIacl1ett
Thinks of 1T.

The Court OF General Sessions In its double Juris.
diction opened yesterday: one branch OF the Courg
before Chief Justice DAILY, in the court room Of the
General Term or the Common Pleas, In continual
ton Of the trial OF Mayor Hall; the other branch.
the March term, before Recorder Hackett for trial
OF all cases coming legtlmately and In the regular
order before 1t. The great question That has been
bothering the brains OF the Chief Justice OF the
Common Pleas for the last three days, ana which
botneratng argument Of counsel has only served to
make worse bothered, Is as 10 the c0nstituuOnaity
OF his Court to continue the trial OF the case Had
the trial OF the Mayor not been broken In upon by
the death OF one OF the jurors sworn to try the case
1t could have been proceeded with legally
to the close, because tine term Of the Court
on which 1t was first called up was extended
for the purposes or the trial. But counsel for the
defence claim, with the death Of the juror ended
the term OF the Court Then to resume the
trial now, whether with the eleven jurors who
have sat upon the case up to the present mo-
ment, with q twelfth added or with jury
sworn TO try the case de moro from new panel.
they say, is UNCONSTITUTIONAL NO Two terms OF the
General Sessions can be holden ut the same time
except, as III late case where special legislation
was called on to egaliZe 1t Tor period. 1t Will be
seen by reference to the business proper OF the Gen.
eral Sessions transacted yesterday before Re-
corder Hackett that His Honor the Recorder
throws the weight or his reading OF the
statute and his experience OF the law in
the scale against Judge DalY's interpretation
OF the same, and THAT he 1.-THE Recorder looks upon
the "other branch'' as Unconstitutional, and That
the only legalized term of the General Sessions Is
that over which he presdes IN the Old brown build
ing over the way from the new marble county COur1
House, where Judge DAILY is holding ephemeral
question may help to simplify matters to-day IN the
case or the People VS.. Mayor ball, and bring the
crastnating deberauon of the Court to o speedy
and satisfactory close.
THE PROCEEDINGS.
The argument as to the power of Judge DAILY to
continue the trial or Mayor Hail. and, il he mas the
day. Mayor Han and the prosecuting counsel were
prompt IN their attendance, and Judee DAILY opened
Mr.. Peckham, on the part of the prosecution.
spoke In answer to the arguments or the defence ON
ment or suggestion was not to the Jurisdiction Of
the Court, but merely as 10 the practice to be pur
which might easily be satisfied by varying inc order
Mr. Burriil had presented some new points as to the
jurisdiction. He thought MI. Burrlll had under
stood the order OF Recorder Hackett.
Judge Daily reiterated his previous statement that
ms dla not aepend on at order 6qt on
Court, which might be shown without any order
whatever He assumed that the proceedings of the
Court were altogether regular down 10 the time OF
the death OF the Juror.
MIR. Peckhan proceeded to argue that the statutes
OF 1s46 and 1882 independent OF the act OF 1851 gave
The power OF holding two terms OF the Court con-
currently. he claimed that, though The statutes VI
1862 and 1872 seemed to be oil first passed for this
purpose yet on examination it would be found that
they were passed for Otner purposes.
Judge DAILY again called attention TO tho delicate
position winch he occupied, and said that while, il
lie clearly saw The law to empower MIN to go on he
should not hesitate TO assume the responsibility,
stlll, II he came TO the conclusion that there was
very grave doubt as TO that power, he should not
wrong, the whole proceeding must be a useless ex.
pense and trouble The question arose from the
branches could
be In session at The same time without compliance
cedent to double session, ana then the further
question: II that was decided In the negative, which
MIR. Tecknam said that If two terms could not
coeXst then 1t was clearly the Recorders Court that
was nor GGd any Soa mt q ns
had held that this Court was regular down TO last
Tuesday; tnat regularity could not be taken away
double term then the Recorder was holding no
Court This term was commenced BY the City
billty, which gave Judge Daily his right sit. The
right right to summon panel at any 'ime during Inc
statute mlteg ihe number OF panel TO thirty six.
a Sas S NJ sd re- acs se 9;
s%S Sn removed et II the mao OF aaS SmSe a0s
Judge Daily called attention to the fact that the
old panel mad not been exhausted but mad been
Mr.. Burrill read the law authorizing the summon.
Ing OF new panel TO show that It contemplated the
existence OF one panel when the new was called.
The Old panel was not under IL to DC discharged till
The Jurors on the new were III attendance on the
Court. AS there was here panel 10 be discharged
no new panel could be summoned. h
Mr.. pecknam claimed ain that The summoning Of the
new panel was Itself discharge OF the old panel;
Scaa ra i EeR S'sel Sr Hs1 BOAT E saas
the statute applicable to jurors ior Court Of Oyer
that these statutes were only made applicable In
cases Of leloGy and not in cases OF ml5demeanor.
Mr.. fireman. followed OIL the same sidc claiming
first That the Recorders order sending the case 10
Judge DAILY was nudity lhe power arising from
the absence Of the CITY Judge lien inc term. his
absence lie claimed, was absence from, the term, 10
be determined by simple observation, aud not from
proof. II might be that some Judge might be found
SO wanting IN sense OF proprley as TO come for
ward ana claim his seat. aud might perhaps have
the power to GUST Ills Honor from the judicial seat.
But that was not the case here. Both Judges were
absent from this term, and Ills Honor was rghtully
here undisturbed INC fact that two con,empora.
neous sessions had never been held did not show
that the power did not exist. 1t merely showed
that the necessity mad not arisen. 1t was I'M
1907, OF 1859 and 1862, without recognizing the
tence oil mat power. 1t had been said that LIS
Honor was sllng here merely to try this case, ana
Honor would not withdraw from That honest pur.
The Court Of General sessions came upon the Judge
when he took his seat. There was nothing In the
concluded that limited The power OF the court. That
case was not concluded; the indictment was not yet
disposed or The jury even were not yet discharged.
Whether the further proceeding were new trial or
the continuance OF the trial, the Court had power
now to extend its term Tor any time 1t might think
Mr.. Tremain renewed the argument Of Mr.. Peck:
ham that whether the recorders were Regular Or not
question not necessary for His Honor to decide
this term was clearly regular and IN It's right.
The Court had spoken OF not assuming doubtful
jurisdiction. II would be strange II tue defendant,
himself most able lawyer, aided by or eight
OF the ablest lawyers could not In q certain sense
raise doubt. The prosecution had full confidence
In their views; they had presented them In full
knowledge Of the important consequences that
might result from It: II His Honor differed from
them In his view they were relieved; II not they
would NOT be relieved Of their duty and the conse'
quences of their action 49,
Mr. Stougnton had yesterday said that they did
not desire to go on with a trial an ac!uitiai IN
which could not be pleaded to another tral, anu
mad spoken OF the possibility that tho same spirit
which animated the prosecution might lead 10
new trial. lie repelled t4o ilea that any
public officers would be so dereuct oi uuy as
TO retry this case after an acqulta: what was