New-York tribune., 1873-05-08
/. rhssher the evidence warrantsa .nch at,s.,io.

Is whether the evidence warranted such direction.
=. sT TO-, c,ons a. ~, r. osS ,'S ~ ~ tae array
plea abatement can be nterpOsed 20 an indiciment
setting forth that inc finding oil the Indictment by
OF objection specifically and snow that Jurors wers
hScb 9eompsdsn ad etd sSg' s covs SsTe e Wend @
People agt Allen, 43 N Y, 52l But mere ineguary,
or nonobseryance Of sona directory provision OF law
IL not available on a plea OF abatement Ooscrvanoe OF
requirement that is onIy directory is essential 70
the validity Of legally constituted tribunal lcyphers
agt People ~ Y, 31I; Frisry agt People, Keyes.
453J Tue defective working OF the statute
cry for organizing the Grand Jury IL not ground
t5ee state agt Brooks. 9Ala. n y y. ~ The seventh
plea oI me defendant set forth that tho Indictment
not found or presented By Graud Jury legally
tnted selected or summoned and ths replication to this
plea raised the issue OF fact which tried before
Judge Cardozo and jury. Had the evidence shOsR
That dlsqualDed or incompetent por.Ons composed any
portion Of the Grand Jury. had there been conflicting
testimony on mat subject proper 90 be submitted % tho
finding Of jury, the defendant might have had
reason to complain But on the facts disclosed, 10
tChap i0s' Laws OF 1883 D. 9jD provides that th9 pr
sous 10 serve as Grand Jurors shall he
contained the lists Of petit Jurors for tho uno
being By board specified BY tae statute P9nf OF toe
select from the lists produced by the Commissioner
Of Jurors Of tho persons qualified 70 serve as jurors Of
the city the names less than 60) more 4aa
1000 % Grand Jurors for bo year" 10 appears
TO nave been allowed by tue Commissioner Of Jurors
not summoned on pctit jury for tn3 year. NDt
because they were exempt petit Jurors, bus beoalse
exemption. The names Of some such persons On
the list from which the Grand Jury for 1871 ana i7l
yolyed that duty. The Commissioners Of Jurors bow
ever expressly testified that tue whole s, u the Grand
that there was any evidence 10 DO Submitted 10 Iry
touching the iDconpeency OF the perOns thus selected
as Grand Jurors aud / think the Judge Was rghl IN
directing the Jury 20 fud "a verdict for the people.
At subsequent stage OF this eise toe prisoner was
again brought inCo the oyer ana Iefmlner' before Mr.
Justice lngfdhln, when ho was tHtll dOv5a ~ ptad
" tho indictment. He thereup0n, through MS counsel
nterpOsed further special plea, setting fOrth ,ns
identical facts asserted IN MS former special plea ad
which, alleged, had been proved on tue lr@l thereof
Tins was plainly an inadInlsslble pea Inc um. Tor
dhatOfy pleas had passed Toe prisoner h@d lIl US
day IN court upon them. Tne judgment or the IA" hd
already been pronounced upon Them ana ne W's re
CURED To pleal on tue merits DatOy peas are h0' -
favored a., tat they may De repeated al suceissvo
terms for successive trials The pea was properly over
ruled b. Mr. Justice ingraham, aud the przOuer nIgIlg
declined 10 further plead TO the indictment tue CJJd
properly directed plea Of not guilty 70 be recorded ~
the Clerk. Both the ruling aud the direction col tBs
Court these respects clearly correct. 10
exceptions OF the PRISONERS counsel presents tuis
That question has areaGy in another ease received
the consideration and Judgment OF this COurt, alG
need chan advert 10 the lucid opinion
Presiding Justice Of First judicial Department Ia ths
case OF Barclay ag TIE Peope, and 20 assert NY
victOD that II II were not binding as precedent I
would compel assent from the iorce of lts roasoHaG
Various exceptions were taken Dy tue prisoner eoua
mission aud re- ocuon VI portions Ol cerlan evidence.
have examined all the exceptions and
touching the points disputed, aud should proceed Ia 80
important a case tins IL 10 express my views al
the questions thus raised were III not requisite Ia dJlug
SO 70 extend this opinion to unusual engh. Perasps
It Is not nmateral that should do moe than say
thai none Of points exceptions made by learned
counsel for the prisoner have been neglected. Iney
have an received OF ths nature tary sAOad
receive, careful examination have, however, arrived
at the conclusion that substantial error sufficient O,
warrant new trial committed Dy tue learned Jldse
at the trial in respect to any ruling u 10 the ADMISSION
or rejection testimony, aud upon these points hAY5
also ayaed myself OF the assistance Wnlch mas Dceu az
forded By discussion OF the points ana c0np4oa ot
opniOns with my learned brethrcn WHO also heard hs
arguments In this case.
There Is no theory the defense and cannot be any
pretense supported by the evidence Lnat shut Out
from sight undcnlJbc fact that the ne OI flA Vas
destroyed by a bullet from the prisOneTs pistol IGs
victim Of homicide hurried into eternity 0y as
m OF defendant All the circumstances Of the Occdr
renee were patiently considered BY Jufy WhO nave pr
nOunccd the deed murder IN the first eSree The srae-
tre of civilized society rests upon laws that pIna
sucn Ofeuses. TAOso laws should De faithfully admins
tered When there has been conviction for ctlmc di.f
fair trial the penalty should follow. aHd 10 l. not os
auy light reason the Court should reverse tLe cY
ycuOH. think 1t Is the solemn duty OI the C0aIth
this case 10 affirm the judgment.
The Iuotion new trial Is denied, and the Judgeas