The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-05-04
THE CASE OF NIXON.

Application to Judge Barrett, OF the SUI
preme Court, for "a Stay of Proceedings
Grounds upon Which the Application Is
Made-The Argument Against It-De-
cisiOn Reserved.
Michael Nixon the unfortunate man now under
sentence OF death in the City Prison for the murder
Of Charles Phyier in Chatham square, If he has no
other friend, has one in Mr.. William F. Howe, his
counsel Unremittingly since the day Of the
sentence Mr.. Howe has labored in his behalf in
preparing bill OF exceptions, with the view Of ap.
plying for Q stay OF proceedings. This application
was made yesterday before Judge Barrett, in the
Supreme Court, Chambers.
GROUNDS OF THE APPLICATION
Mr.. Howe made lengthy and forcible argument.
His first point was that the record showed that the
jury who were summoned and retained the
panel to try the case were not the jury who rem
dered the verdict. His next point was that the
Judge erred IN admitting the statements, declara-
lions and acts respecting the finding OF the pistol.
He next referred to the refusal OF the Judge to
charge apropositon affecting the question Of doubts
to which the prisoner was, as he claimed, entitled
He insisted that the humanity OF the law gives to
the prisoner the benefit OF any doubt and that was
not only refused to him, but the jury
might well, from the refusal and the charge, have
understood that doubts upon specified questions,
NO matter how important to the 1nal point, we're
1mmaterial and should be disregarded 1t was
clearly calculated TO mslead the jury There could
be no doubt upon the whole case, unless there was
doubt upon specific point and to refuse to tell
the jury that doubt upon specific point was to
onure to the prisoners benefit, but that doubt
upon the whole would 80 enure, was to present
the matter IN light well calculated to mislead
them and to deprive the prisoner of the beneht Of
the doubt. Each TACT necessary to the conclusion
petent evidence beyond reasonable doubt II the
guilt OF the prisoner is to be established by
. reasonable doubt in regard TO any
enc OF them, that one ought not to
have any inn nn ace IN making up their ver
murder or manslaughter, he insisted that he was
entitled to the charge that 1t should be man
slaughter: And that the Judge took away; for the
Judge by his charge restricted the doubt to that
which would entitle him to acquittal, depriving
him entirely OF the benent OF that which would re-
duce the crime to manslaughter. There was also,
he urged fatal error in that portion OF the Judges
OF killing might be formed on the instant Of killing.
He insisted tnat there must De premeditatiOn-that
e, some time before the act , under the law
is sufficient time for generalization, but not when
the act and intent are simultaneous The intent
must precede the deed, although the deed follow
immediately afterwards. After insisting that the
law OF 1855 to the prisoner the right to appeal
TO the Supreme Court, and from the Supreme Court
20 the Court Of Appeals, he urged in conclusion,
that upon the points submitted and the questions
Pratt and Davis granted stay Of proceedings in
the cases of the wealthy prisoners Stokes and Fos-
ter, and in view OF the reasons given by those
learned Judges in those cases, the same right, the
stricken Nixon.
THE OPPOSITION TO THE APPLICATION.
Assistant District Attorney Lyon, in reply, said
that he had supposed this application was entirely
car pdrte, and he had not, therefore, made prepare
ton. He suggested that this application should
have been first made to the Court OF oyer and
Tcrminer and to Judge Brady, VINO tried the case,
and that his reasons l0r refusing should have been
given in writing.
Mr.. Howe said that such an application had been
made to Judge Brady in the presence OF the Dis
trict Attorney, and he had desired that the appi-
cation be made to another Judge.
Judge Barrett said there was no requirement
that the Judge give his reasons in writing.
Mr.. Lyon argued that the objection to the panel
Of jurors could only be raised by special pleas that
there was no doubt raised by the testimony ex-
Cept by the witnesses who were utterly discredited
by their own testimony and entirely disbelieved by
the jury; that the prisoners own testimony cured
any defect to the proof OF the pistol being his;
that the charge or the Judge as to the design was
in exact conformity with the rule OF the Court OF
Appeals; and, II not no prejudice arose, since the
definition OF the elements Of murder was clearly
given elsewhere IN the charge, and that the same
thing occurred in relation to the olher exception
70 the charge.
Judge Barrett intimated that he regarded Mr..
HOwe's request as to reasonable doubts as being
too broad, but reserved his decision on all the
points. He added that he did not consider the
matter one OF judicial discretion, but to be deter
mined solely by the law. II he decided that there
were good legal grounds for the application he
should grant IL, but not otherwise.