New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1873-04-24
THE COURTS.
THE STOKES APPEAL.

ton OF the decision Of the motion made the previous
day IN the case Of T.. s. Stokes. Toe motion made
by the District Attorney behalf Of the People defend
ants in error 10 strike from the files the assignment OF
error, and to yacate the rule requiring tho attendants 10
Join In and the Court decided grant H. all tina
Judges concurring. Tie opinion Of the Court ren-
| dered by Judge Davis, is as follows; ...
The writ Of error IN TINS was sued under tho
Statutes, entitled Of error on judgements and
certiorari IN criminal cases" q S. page 1881 The sd
section OF this article declares that assgnmo nj
errors shall be necessary upon any writ OF error
0ran issued pursuant 10 The foregoing pfOvsons but
the Court shall proceed the thereto ana rem
der Judgment upon the record before them IL Is
fest that the section was intended 10 alter existing
practice In criminal by thereafter rendering an.
necessary an assignment and Oinder In upon any
ions OF the The plaintiff in error insists that n
only intended to affect the general assignment Of
this point has been directly heated aginst him in
Hagen agt The People, Parker. IT'S, ana in AcCann
agt. The People, idem az; aud We of TIE opinion
that these cases authoritative expeditions the
1t urged that they have been practically oyerruled
10y the Court OF Appeals In CaDcem agt The People az
N. Y 1881 The learned judge by whom the Opiulon was
written in the lastnamed was the presiding justice
IN the OF Hagen agt The People, and
! the opinion pronounced by Mr.. Justice Weller. IL "
worthy Of remark that in bis very able opinion IN Can
cemis ausOn whatever Is made 70 the decision
of Hayen's case, and his expressions, which may 10
considered some extent with the opinion
In the latter case, and thereon by himself not 10 DO
called for by the question In Cancemis ease He held
that tue matters IN question In the IN the Court OF
| Appeals were IN fact and IN legal effect part Of the
Il
Appeals, As much 50 as the indictment or any other
part Of the proceedings" The Court below had BY
| Appellate Court held that they must be treated.
! therefore, IN they were inserted In the body
OF the record and be considered in connection
with the rest Of the record in regard 70 the errors winch
CENTS case did Involve any question Of assignment
in fact and jonder therein the proper mode
of reaching and reviewing wholly dehOTs the
record and forming part of tile return All the ques
lions considered Ia the People agt Allen tiJ n. T., 81.
appeared IN the bill Of exceptions anu were themselves
distinct grounds Of exceptions That case cannot bs
properly said to have raised any question OF practice
under the passed upon Hagen agt tho People
In People agt. Willis t92 N " 7i6 tue practice In
criminal cases was quite extensively reviewed by shs
Court, ana the opinion pronounced ny Demo, On j. IN
which all the Judges cOnourred seems by very strong
Inference exclude the idea OF bringing errors In fa
to an Appellate Court by assignment and ionder under
practice existing before the Revised Statutes We are
OF the opinion that tho motion should be granted
This decision having been announces, the question Of
arguing the appeal on the bill OF exceptions coBsd
ered and az the points for the defense not fulJ
printed 1T first suggested to postpone the hearing
until the May term The DstrictAttOrney, however,
agreed to once and the Court decided TO begin
without any further delay. brief recess was then
taken after which the Court organized with Judge
Brady as presiding Justice, and Judges Davis and
Fancher associate Justices II was decided to allow
counsel on each side five hours in which 20 present their
arguments, although Mr.. Dos PassOs claimed that n
would require two days to unfold properly their views
Of the defense.
Mr.. Tremaln opened the argument by proceeding to
OF Stokes. He rected the special pleas fled on
behalf Of Stokes by his first arranmen and
contended that the Judge erred in directing verdict
the people upon the issue joined By the seventh plea
and the replication thereto This error OF the Judge In
ordering verdict for the people, and thus trying the
issue himself was preudieial To the defendant, and
really deprived him Of the trial by jury The facts set
forth in the seventh plea showed that the Grand Jury
finding the indictment illegal body and could not
present good Indictment and 1t was an error oil the
Judge override the prisoners special plea In abate
ment because alleged to be diatory, the statute
recognizing the right TO plead dilatory plea The do
csOns made upon these special pleas he argued, were
properly before the Court for review They appeared
both by the oer0rar and by the judgment
record upon the writ OF error.
Mr. Treman dspOsing of this branch OF the case took
up the exceptions taken the first trial. He claimed
that the Court erred in Oyerrung the challenge for
principal cause to juror Manchester, he being dis
qualified under the 1872 that this act
stitutonal because it authorized a trial by partial
jury, and violated the sixth Amendment OF the Consu
tuon Of the United States that the Court erred in adj
hitting evidence Of what occurred after the shooting In
the presence OF Fisk and the prisoner that it was an
error Of the Judge TO admit the minutes OF the Grand
Jury proving that the day before the homicide that
body had voted bill Of Indictment against the prisones
for the crime of blackmainG that the admission Of
parole evidence regarding the litigation between Mans
field Fisk, in the YOrkyille Police Court clear
4
put and answered in the crOssexaminaiOn OF Brennan
one Of the witnesses for the Defense relating to his
vicon for stealing watch that erred IN excluding
proof threats made by deceased that he would kill thu
prisoner short time prior to the alleged homicide IN
allowing hearsay evidence TO the whereabouts OF Dr.
Trper admit ing proof OF what passed between tho
police officer Mr.. Powers with the view Of explain
the conflict between the testimony OF Powers ana
Crockett and 10 not admitting pro)t that IL would be
difficult to throw pistol which would be lodged IN
sofa as appeared by experiments OF CVOfton.
Counsel coneDded that the defense should have been
allowed to give proof of the murderOus attack upon Mr.
Eaton, it having been already proved that Fisk was
connected with and that tae prisoner knew VI IT, aud
also OF the yaous threat and other acts OF Fisk as
offered proved by Ramsey, which the prisoner
informed prior to the shooting, this testimony
bore upon the apprehensI0ns prisoner and his
grounds therefor OF the shooting aud would
be peent either TO establish homicide or mansabSh
in third degree. ltw an error he argued 70
reject evidence OF the before this
Grand Jury the mistress OF Fisk and that another
was prostitute. The exclusion Of the prisoners evil
Deuce showing that he had been prior the lime of the
homicide, apprehension OF personal attack from
Fisk or by his direction, and how long he had been
thus apprehensive, he insisted an error of the
Judge, well the ruling ont ot testimony showing
that the prisoner had Travelled in carriages
through the city 50 avoid njIry from FISH, aud
proving that Fisk had threatened him personally and
mad said that he would railroad him TO State PR sou
Mr. Tremaln claimed generally that the exclusion OF
relating 10 the prisoners fear Of violence from
Fisg and his enissaries and the cause therefor was
gross error ana mat the Judge In not allow
ing Cory, witness for defense 10 TESTIFY TO the cahse
of ills dismissal IRON the Grand Central HOtel. Twas
improper IN the Court tue theory which
part its charge. and IN stating that II would enable
jury reconcile greater amount Oi testimony THAN
any other theory when had been suggested He insisted
that error To refuse to charge as requested
upon the reconciliation required 70 constitute MURDER IN
tie first degree ana charging the jury that the fact Of
the killing being Connected II became tile duty OF tho
prisoner 10 satisfy them uat II Was mol nnrder WHOA
the law implied com the fact Of the killing under tue
circumstances IN The absence ot explanation that IL Was
mauSauShtcr III the TIME OF JlStihaSIV
eide.
Mr.. Dos Passos is to follow Mr. Trcmain, tomorrow
after which the Dlstrict-AttOrney will reply