The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-02-09
The Whole of the Objections Reviewed
by Prisoners Counsel.
THE CASE SUBMITTED.
Judge Davis Reserves
His Opinion.
INTERVIEW WITH THE CONDEMNED MAN.


exceptions and the concurrent motion for a stay
OF proccedngs-that the latter N ght be presented
and argued before another Judge OF the Supreme
Court while he held the bill OF exceptions for review
and Jacksonville motion Tor the stay OF proceed
tngs was argued yesterday. Judge Davis, after
taking his seat in the Supreme court Chambers
notified the counsel on either side that he was pre-
pared TO listen to the argument Of counsel in the
case. The court room was crowded throughout
the day by professional men more than by any Sec
tion of the class OF people who watched with such
deep interest the proceedings when the trial
proper Was In progress In these discussions OF
The question so vital TO the prisoner he is never
present, and probably after the long strain upon
their mental and emotional feelings anu with that
feeling OF hope long deferred which maketh the
heart sick, there was only one or two Of Stokes
more intimate friends present during the tedious
proceedings involved In the argument Of counsel.
-. Mr. TREMAlNs ARGUMENT.
Mr.. Tremain began his argument by referring to
the TACT that, though Judge Boardman and Mr..
Beach, associate counsel for the people, had both
supposed that this application could be made with
out notice, they had, for more abundant caution.
given notice to the District Attorney.
MIR. Justice Davis was clear That this notice was
necessary alter Judgment.
MIR. Tremain resumed, arguing that a stay OF
proceedings should be granted in all cases where
o doubtful question was presented, either by ex-
captions in the bill OF exceptions or in ex-
trinsic matter not appearing directly in the bill
OF exceptions. He cited various cases to show
that II there were any material doubtful questions
the Court was bound to grant stay OF proceed
ings until they could be decided 10y the appellate
tribunals He cited especially Fosters case, in
which the Court OF Appeals. in view OF newspaper
N do 10 inna haI W. A. n CuSn
approved In words the granting OF a stay Of pre-
Ceedings, and had said that no question could be
trivial In capital case. This case was remanded
by the Judge who tried it to the Judges Of
this district without prejudice and he
should not insult this Court by warning
1t against popular clamor and prejudice.
There were two bills Of exceptions In this
case and he claimed that both OF these were
properly before the Court. There was . special
plea put In by the defendant, containing seven
different pleas arraigning the composition OF the
Grand Jury as having Oeen so made up as to make
1t no Grand Jury at all On six OF these pleas de.
murrers were interposed, but on the seventh,
averrng prejudice to the prisoner trial was had,
and on that trial the Court Judge CardoZo) took
the matter away from the jury, but in doing so
said that the question was so doubtful that.
should the result Of the principal trial require
1t, IT would be proper to give stay to have
1t decided Here was judicial decision BY a
Judge OF this very Court that the question was
one OF such doubt rs to require the approval OF q
higher CourC. He argued that the matter WAS ma
teria. Inc only case doubling this was Freeman's
case, arising on trial OF the present insanity OF
che prisoner That was not u plea which would
uuash the indctme Mt but merely defer the trial.
This was very different from the case of special
plea. He cited a case where the prisoner had con-
bented that special plea OF previous trial be tired
by the Court, and the General Term had held that
this was error anu that the prisoner could not
waive his right 10 have the special pea tried by
Jury. In this case the Court had been asked
charge the jury, had admitted and assumed the
truth OF every allegation Of the jury, but had,
nevertheless taken the case from the jury yet had
Stated that 1t was proper case Tor certificate Of
appeal
IN THE PEOPLE AGAINST GRANT
1t was held that prisoner was equally entitled to
p trial by jury on special plea as plea in bar.
Was tins tr.al by Jury, and could this matter be
called lriyoousS The then counsel, knowing that
there had been no proper trial, prepared q
second special plea. which he presented TO Mr..
Justice ingr ,na :. But Mr. Justice ingraham
prosecution to plead. That fact md not appear on
the bill OF exceptions, but would appear by a Ger
ftorayf In dmlnuton Of the record and could ne 80
reviewed. Counsel proceeded to present the ex.
ceptiens ON the trial Itself, and claimed that not
one ol1 ten OF these exceptions were fatal to the
iurors-those to Manchester and Lysaght. They
beth admitted they had opinions formed, and yet
ceptions. Manchester admitted that he had said
u he went on the jury he would hang him quicker
shan lightning,n though he said tiat was . loke.
tiis own statements were stronger than the state
lpents whicirwere held to dsqualfy Il juror in me
Cancemi case and this case was but one Of twelve.
HE question then came on the
CoNsTIruTioNALITY OF TIE JURY LAW
and this was no light question. He was Tree to
had been ~ hrst in favor OF II, but lie did not
pect so soon TO see an illus ration OF 1t like this,
where three oil the jury were found thus preju-
diced. lie had received that very morning py
express decision given alter very thorough dis
cusslon that similar provision OF q statute OF
Tennessee was unconstitutional. The constitution
0f tennessee On tins point was little more than
re-enactment oI the United states constitution.
Judge DAVIS inquired II lie meant that the United
States constitution in this respect controlled the
State Courts
Mir. fireman replied undoubtedly IL did; and
though he had no authorities TO produce, that mad
been the expressed opinion oil several OF the Uni
ted states Judges. IL was one oi many rights Sc
cured by the constitution OF the United states but
not specially mentioned III the State constitution.
Judge Davis asked II this question was not now
before the General Term OF thus district.
Mr.: Phelps said II was, but was not necessarily
Involved Id the case which had been argued, which
might be decided In other points.
Mr.. 1remain said at least II was a question
which was OF gravity enough to go to the Court Of
The Court here took a recess. 70
AFTER RECESS.
Mr.. Tremain resumed his argument. He passed
over the exceptions to the evidence and took up
Che exceptions to the charge, and first to tn,
Judges charge that the TACT OF the killing being
proved the law presumed IL was murder. (Mr.
Dos Passos read the words OF the charge on this
pont
Mr.. Trcmain continuing. said that was not the
Paw in this state. IL was true that the jury might
infer premedltation from the deadly weapon or
from the circumstances; but that was q Inherent
thng from the proposition VI the charge That the
law presumed murder from the killing. Judge
E0nia , han made similar ruling and the Court Of
Appeals had expressly and directly overruled his
Luing AID mad held that though rom circumstances
sne Jury might infer generalization, the law did
not tnrow on the prisoner, IRON the mere fact Of
snc ei,'ing, she necessity OF proving negative
He recalled In this connection the prisoners testi.
n0ny as TO the suddenness and unexpectedness OF
Inc meeslng, ana the Judges charge that the
prisoners testimony must be received with
great distrust, and argued that under the
charge the necessary result OF any killing where
Redmond had ned and Hart was periured~
was verdict OF murder In the Arc,
degree, whatever may have been the real facts
The jury must find the intent to Kill; they cannot
be relieved from that duty by any presumption oS
law Not even the common law, which did nresn,na