The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-04-24

peN. Y. 175,. the practice IN criminal cases was
quite extensively reviewed by y" T. IN which All
the Judges concurred, seems by very srs ~ sacts
ence to exclude the idea OF bringing errS oinfer
under pssoss ssns me revised
utes.
This decision having been announced. the qucs
ton Of arguing the appeal IN the bill OF exceptions
were not fully printed. IT at first suggested to
postpone the hearing until the May term. The
once and the court decided 70 commence without
< brief recess was then taken, after which the
Court organized. with Judge Brady as Presiding
Justice and Judges Davis and Fancher as Associate
Justices. 1t was decided to allow counsel on each
ments, although Mr.. Dos Passos claimed that 1t
would require two days to properly unfold the
views OF the defence.
THE MAIN ISSUE.
. Mr. IremalA then proceeded with the argument,
the principal points OF which are the following
He recited the various proceedings In the case and
briefly stated the evidence given upon the trial.
The seven special pleas, alleging various irregular
tiles, were adyerted to and the proceedings under
them. He claimed that Judge Card0z0 erred in
directing o verdict for the people upon the issue
joined by the seventh plea and the replication
thereto the statute being peremptory That all
issues OF fact joined upon an Indictment must be
Dy jury, whereas to direct verdict was trial by
the Court This error OF the Judge was pre1dcial TO
the defendant as, unless q bill OF exceptions lies
upon the trial Of the special plea, he s deprived OF
verdict OF q jury in his favor upon those lacts.
The several facts set forth In the seventh plea
showed that the Grand Jury finding the Indictment
was an illegal body The decisions made upon
these special pleas, Mr.. Tremain claimed. were
properly brought before the Court for review. They
appeared both by the return to the certiorar1 and
by the Judgment record returned upon the writ or
error. He then took up the questions raised upon
the bill OF exceptions, first asserting the uncon-
sttutionalty Of the jury law OF 1872, on exception
pal cause In the case OF the juror Manchester
the trial by the jury secured BY the state con-
stltution includes fair and impartial jury
The sixth amendment OF the United States censti-
tutien was violated by the statutes. The four
teenth amendment secured to the citizens OF New
amendment to citizens OF the United States, and
render this statute invalid whatever doubts may
have previously existed TO the application OF the
sixth amendment In proceedings In the State
Courts. The jury was made up OF those who had
preJudged the prisoners case. Mr.. Tremain
enumerated what he claimed to be errors IN
the admission OF testimOny-among them evil
dence of what occurred alter the shooting In
the presence OF Fisk and the prisoner; in exclud-
ing proof Of threats made by Fisk, that he would
kill Stokes, short time prior to the alleged hOm
eide; In excluding proof OF the murderOus attack
upon Eaton; that Fisk had threatened him person
ally to railroad him to State Prison, and he be-
Curtis as to the presence OF pistol upon the
landing.
Mr. Tremain also urged that Judge Boardman
erred In submitting the theory in his charge in ref
erence to the pistol, with the statement that 1t
would enable the jury to reconcile q greater
amount OF testimony than any other which had
been suggested. Counsel recited all the main
sumed his allotted time the Court adjourned till
this morning,