New-York tribune., 1873-02-15
CRUSHING STOKES'S HOPE.
JUDGE poARDMAN REFUSES A NEW TRIAL.

AN ELABORATE DECfSION-lHt ThiooNEh M
cFIyEs TIE NEWS QUIETLr-EVERY EfFokf
To BE MADE BY HIS COUNSEL
Tba whole city was somewhat excited, yester-
d o,,er the decision OF Judge Boardman, denying the
motion for new trial in the case OF Edward 3 STOKES
and It was everywhere the prevailing topic OF conVerSa
finn The news which was announced by Judge lngra
ham IN the courtroom OF the oyer ana lernher was
ON the bulletin boards Ave minutes a'er' ana nashcu al
over tbe CITY Tho following is Judge Boardnans opin
ion nearly in full
THE DECISION.
.mao,i,s of iurors are not admissible to impeach
ther verdict The rule, aud TOT the same Iea'o"
annlies 20 nGidayits OF others touching hecraonS
,urors while engaged upon the trial OF aier the re'u
ton OF their verdict authorities citedJ sueh por'o"
of the adavits used upon this motion as are lncop
tent under these rules rejected from conSluer'o"
revo grounds OF objection are urged as to jurors frs'
that some Of the jurors had formed ana expressed uc
cded opinions to the case before ney weIg c
Second that some OF the jurors nd % yaid their
guilty Of such misconduct as should rchuer Noiu 'no
Verdict 49,. ,,rs ,,,or ,bei,
vomnotion under challenge, declared tnat tlcy nau
formed and expressed such opinions pt ut Iuc SUN
time asserted their belief that they eonu rehe s % ~
partial verdict according 10 te ,v"nid nor HAS
them on the trial, and that slicn Opinions Wouiu ou ~
or their verdict. Believing such statements 10
he true they allowed to become jurors unuer tlo
Act Of May 3, 1872 chapter 40 tey "tru II
was right ana proper, unless that act u @ ~.
tonal That question OF law In PrSse ~ ~ t te
prisoner on writ of error. The aih1avs mere fesenu
ada nothing to the objections made on tne @ 10 & td
crm1etcucV of the Jurors referred to- They simply tred
10 prove what then fully admitted ana the question
The end turns upon the @ non Gi @ hne tr T
aud to which ruling the prisoner has an available eA
oeptiQp' o,,- -. .,.. ~,
Yosf on OF the Jurors visited the Grand Central Hotel
tho of the homicide during the tral that MI
Beyers another juror looked at his own pistols ana at
pistols i'm the window of Broadway store, with refer
70 the number OF chambers TO De casually seen anu
determined; and that Mr.. BolleS, third juror was
seen with daily newspaper In his hand, and SAID that
he had read itthat IL the case as published In the
newspapers. While these several acts were hdseeet
the ain ayits do not show any real or possible wrong
1t does not appear how by possibility the acts or
verdict An injury to the prisoner must be real and
established I is not sufficient that IL may be imagined
suspicious OF wrong to set aside every verdict how
ever honest. But the aidavts Of the Jurors implicated
| done, or SAID, that IN any respect influenced or
modified their verdict or lndsmehtt Ire lespectdihigg pee di z
overcomes any suspicion that may be justly cAceu Dy
the unfortunate curiosity of the jurors IN the absence
Jurors will inyalidate their verdict tAuthOIltes
clted) to Mr.. Boes, not enough appears TO exgie
any we'll founded suspicion of wrong or injury 10 the
prisoner. What he read, where he read now nucn ne
read whether right or wrong a. s9I not o h ba m @ he
or IT influenced whether for or aSalnst tne prisoner,
oS i1stIfying the granting Of trial because the
prisoner had thereby been reiudlced or injured III hs
tights Omitted States agt. Reid, Il Howe L. s H. 3d.
During the trial the prisoner left the courtroom for
about We minutes during the examination OF Coroner
Young Tie officer in charge OF the prisoner thought he
had the consent Of the Court In this he IS mistaken IL
was a voluntary act Of the prisoner without the khoH
EDGE or consent of the Court of the counsel for the
prosecution HIS absence was known TO ms own coul-
s T y the occurrence It Is not shown the
evidence of Young conroverted by other evidence
| Tn fact # was not whole evidence might be
stricken out of the without harm to the prOsecu
benefit to the psS59d e m p1ovH Eew b moInS
ings upon the inquest and the identity OF the pistol ana
other articles produced upon the trial Inc ldehtly Oh
| the pistol with that used by Stokes was cOnceued A. s
Insisted that such absence was an rreSuarV Iatdi "
Il was necessary that the prisoner should be present
during the trial 1t his right The law gave n 10
him for his benefit II ne & %s M an oi 70 HIM and ne
for moment the Court without lts knowledge OF
the knowledge Of the prosecution l0f tempIIg Puis
nose "a i'm this ease IL would that the substance OF
The law would be sacrificed to its shadow 10 oli ~ cilV
especially when there is not the sShtest SNluvo 70
believe or even suspect that he was harmed y te pro
ceedIngs had in his absence COdnscI VIII Cu a. o,
errors not jurisdctional The question n
whether inc pr,s4nss e Claimed But 10y his own voiu
and his own fault he creates % an c prnc9s
would be a premium upon wrong-dolnG' especaiy IN
case where the prisoner has suffered no iHy & ad % S
in no respect been prejudced SUBSTANTIALLY nd wl,9n M
the spirit OF the law the prisoner was present during nis
c absence OF the Judge twice for about five minutes,
vvhe counsel for the prosecution was summing up TO
the Jury is also urged as an lrregularlty no cohplnt
made that improper occurred curing such
absence that anything Objectionable said or done
or that the prisoner was III any respect preuuccu
The opening speech OF counsel for the prosecution is
suggested as irregular and improper and ground Tor
trial reading OF that part set tlotth N the au2
wiz furnishes but weak ground Tor Jhe suggestion III
remarks OF counsel are Objectionable II would be well
for counse to make their objections at the time The
Court has responsibilities enough without being called
upon To object the line OF argument which counsel
NAV choose indulge IN, unless IL ia grossly out OF
character The opening remarks were not OF that kind
II youd be asking too much TO set aside verdict and
grant new trial upon the pctense that the opening Of
counsel for the prosecution was an rIeguailty 70 De
4 ls ~
ever objectionable form. but the subject OF objection
aud exception in like manner with any other proceed
pon the trial the evidence of the prisoner tended 10
prove that Fisk, the deceased came up tue stairs to-
ward the prisoner with pistol In his hands, and that
the prisoner shot Fisk in self defense Several witnesses
were called show that Fisk carried pistol that such
near where he fell and was carried away. The affidavit
of Mary Bean shows she Col Fisk come out Of the
| pocket 90 back into the stairway entrance and
after she heard two pistol shots, she being thenon the
entrance 10 the stairway. Upon this adav trial
is asked upon the ground of newly discovered evidence
Thls evidence SO far as IL extends to establish sefde-
fenso is cumulative, and adds nothing 70 what tes
titea 10 upon the trial Beyond that so far as the a
davt shows Mrs Bean does not see the parties when the
firing takes place. does not know their relative positions,
does stokes at ALL does not know wbat Fisk was
doing when Stokes fired, nor any facts immediately ac;
purpose. IL is not therefore, so material as 10 furnish
Just ground for believing that 1t would affect the result
The right of defendant 10 move for new rial in this
court verdict and sentence upon the Irregularities
alleged will not be considered, for the that the
conclusion reached upon the merits OF the motion render
t unnecessary. The defendant Will not be prejudced
NV any negleet 10 decide that point II the Supreme
Court will hear this matter by way Of review of this de-
clson independent question. the defendant can
again present il there But II this motion has been
rightluly heard aud the decision be nal and concu
siye far as irregularities are concerned it is sub
ited with the confident belief that the fairly
due to the and the facts in the The motion for
| new trial Is therefore denied
| THE NEWS IN THE ToABs.
| This decision of Judge Boardman has been long
pected and falls with only duh blow Various opin-