The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-07-08

Nor the past ten days the rumor has been preva-
lent in the city that the District Attorney would be
compelled to discharge from custody Rosenzweig,
who was convicted about two years ago, in the
Court OF General Sessions, OF having produced an
abortion in the case OF Alice Bowlsby, young lady
from Paterson, N. J. Rosenzweig was tried tor this
crime before Recorder Hackett ana was promptly
convicted by the jury who never left their seats.
The old law under which this offender was tried
and convicted made his crime
MANsLAUGHTER IN THE SECOND DEGREE
the punishment attached to which was
term of years in the State Prison
not to exceed seven and not to be less
than four, at the discretion OF the Judge who
tried the case. Recorder Hackett, in passing sem
tence, said he would inlet the full penalty Oh
Rosenzweig, and expressed his regret that the
law did not allow him TO pass heavier sentence.
The murderer duly sent to Sing Sing, ana actu-
ally had commenced to serve his term OF seven
years, when, after he had been incarcerated few
months, his counsel Mr.. Howe, applied to tho
General Term of the Supreme Court for a writ of
error which was granted and new trial ordered
Meantime the Legislature, acting on the hint
thrown out by Recorder Hackett, passed new
law which changed specifically the nature OF
Rosenzweig's crime and made what had been
hitherto an offence punishable with seven years in
the State Prison
PUNISHABLE WITH TWENTY YEARS
When Rosenzweig had been brought from Sing
Sing to the Tombs, in the early part OF last NOvem
Der, the writ OF applied for by his counsel
Mr.. Garvn was still in the District Attorneys
office. A great noise made at the time over
his temporary release from Sing Sing. and it was
generally stated that he would be reindicted for
mi in no
until Mr. Phelps came into Office, and in January
last HERALD reporter learned that the testimony
in ROsenzweig's case had ali been sent before the
Grand Jury. and
AN INDICTMENT FOR MURDER
in the first degree bad actually been ordered by tho
Grand inquest. This indictment District Attorney
Phelps never filed in Court, for the simple reason,
as it is stated, that had Rosenzweg been prose-
cuted under that indictment, he would have been
put in jeopardy Of his liberty Tor the same offence
on two separate occasions, and must have been, as
the lawyers have it, put out on the sidewalk"
That indie tment was, of course. abandoned, and
now another important question comes up in
Rosenzweig's case.
The old law, under which ROsenzweig was in
dicted, has been repealed by the statute,
making the crime OF which he was found guilty
SPECIFICALLY DIFFERENT OFFENCE,
punishable with twenty years in the State Prison,
and with 1t its pains and penalties, unless the new
statute ordained otherwise ROsenZweg, it is con-
tended, is TO-DAY guilty of no crime, because the
old law against which he offended, has gone out Of
existence, and. OF course, he could not be indicted
under the new law, which was not in existence
when he committed the offence for which he was
sent to Sing Sing, and therefore he must, 1t Is
said be discharged
A HERALD reporter called yesterday evening to
Assistant District Attorney Russell, who has
had charge OF this case but, being informed that
that gentleman was in Saratoga enjoying his vaca-
tion hunted up Assistant District Attorney Rollins,
who, In his absence, has charge OF the General Ses-
siuns business When the reporter had introduced
himself and explained that he mad called IN refer
''Oh, that is Mr.. Russell's pet case"
as 1t . TACT that your people are going TO DIS
charge Rosenzweig, Mr.. Rolllns2" asked the re-
..Not that know or" was the answer
"Then why IL he kept In the TOmbs so longP"
"Well, you see in this Summer weather we want
to take up and dispose OF as many small cases as
possible, so as to empty the City Prison. We don't
want to have them all hudded together there in a
cell, and any case we expect delay in we gener.
ally put on"
"Well, think next month Assistant District
Attorney Russell intended to try him, believe,
last month, but something lnterposed."
as there not some difficulty about that new law
to prevent his trial ~
''Oh, no: We do not believe That there is much
In that. Besides, in the new law there Is the fol-
lowing special clause that all cases involving
offences against the old law which are still pend
ing shall be tried and disposed OF according to the
old law, and shall have the penalties attached TO
them under the old law enforced.n
'sThis, Mr.. Rollins, is not the new murder law
passed by the last Legislature that YOU speak Offv
no. 1t is the law passed by the Legislature OF
1872 changing the punishment Of these abortion
cases."
'Do you mean to try Rosenzweig under the new
or the Old lawY"
'Under the old law, under which he was nrst
convicted"
Now Rosenzweig has been confined in the Tombs
since last November, and the reporter. believing
that there must be some other reason for his not
being tried outside the crowded condition OF the
City Prison IN ,,S summer weather, called on MS
stated distinctly that there Is such saving
clause that alluded to by Assistant District At
torney Rollins in the law OF 1872, which makes
Rosenzweig's crime punishable with twenty years
In the State Prison. He said that there was such
a provision IN the new murder law, passed by the
present Legislature, but not IN the abortion law Of
is72.
'Why don't they try himr Under what law Will
they try him. as the old law has been repealedS
They had him indicted Tor murder under the old
Indictment in Court. The statutory offence is the
only one he can be held for and the statute alleged
to be violated has been repealed"
The reporter subsequently called on Assistant
District Attorney Allen, who, in reply TO the re-
porter's question, stated that the law of 1879
years is absolute and has no retroactive clause.
"Then Rosenzwelg cannot be heldf" hazarded
''That is question OF law which must be argued
in Court" Mr.. Allen replied. 1.-The Judge must de-
eide that. The clause you speak Of is In the new
There are good many people who sincerely be-
lieve that the Legislature has bungled the matter
and that Kosenzweig can never be legally tried Tor
his old offence under the statute OF 1872 or I'M
der the old. As 1t IL, the new murder law requr-
ing deliberate intent, such the District Attorney
says he could not prove In the case OF Gen, the
wife murderer, does not touch the cases OF King,
Scannell, stokes or any OF the murderers In the
Tombs whose crimes were committed before that
law was passed. The clause alluded 10 above ex-
cepts these cases and they will all be tried under
the murder statute, where so much proof as to de-
liberate intent which the new law demands Is not
required.