The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-06-11
The stokes Appcal-Deplorabie Uncer-
tainty Of tho Criminal Law.


On the 9th of January, 1872 James Fisk
was shot by Edward s. Stokes. The follow
ing morning Fisk died. There Immediately
arose loud cry through the community for
vengeance on the murderer. Seventeen
months have elapsed since then, and justice
has not been done Twice has the deliverance
Of the law been invoked between the people
and the accused, and the case at this date
stands exactly in the position where it stood
Oh the morning of the 7th Of January, 1872,
when Fisk was declared dead.
Yesterday the decision of the Court of APP
peals was promulgated at Albany. The Court
were unanimous in their opinion that the ap-
pellant is entitled to new trial The decision
is based on several grounds, the broadcast and
most sufRcing of which is that Judge Board
mans charge on the second trial was erroneous
on most important point. The Judge, it
seems, charged, according to common law, that
the law presumes murder from the fact OF
killing and calls on the prisoner to mitigate or
justify. Under the statute law they decided
that, the killing admitted the onus probandi
rested with the prosecution so lar as concerned
the degree of guilt, or, in fact, legal RESPONSE
bility at ALL There are other minor points in
the opinions delivered. One is against the
decision of Judge Boardman to exclude
evidence as to alleged threats by Fisk to kill
Stokes and on the points of evidence elected
from Jennie Turner, the servant of Mrs.
Morse. Now, on the decision of these techni-
cal points we have very little to say. They
were, doubtless, made according to the letter
of the law; but what all honest men will
complain of is why these errors, as they are
called in the Court below, could possibly have
been made. Judge Boardman is surely not
| such novice in the law Of the State of New
York that he could have fallen into this error
without grave consideration. To hint for
moment that it was an intentional lapse would
be to make very grave charge against Judge
! Of the Supreme Court of the State. We dis
miss this supposition promptly, and only
allude to it because, painful as it may be, it is
| one that will not escape those who look for
hanging in this case at all hazards. Whatever
our opinions may be of the crime and the
! punishment it deserves, we are too well aware
that the safety Of the community can only be
| guarded by that punishment being awarded
according to the letter as well as the spirit Of
the law. What, then, we may ask, led to Judge
| Boardman's blunder? The answer must be
patent to all-namely, the obscurity, we may
say the incongruity, of the law touching
homicides in general We have, we are thank
full to say, outgrown the Court Of Appeals
presided over by "Judge LYNCH" but the
community, in surrendering its authority to
the Courts, has q right to exact precision in
the administration Of justice. That, in the
Stokes case, is just what we have not
| Nixon killed man q few months ago and
has been long since strangled. Jack Reynolds
undertook without money in his purse to be-
come prophet in his own country" and
died on the gallows as o reward for his preten-
siousness with "a short shrift and long rope"
These are Of the cases on which society
graduates itself that crime can be punished
| but when the bullet has padding Of ''infu-
ence' and currency society must chant its
paan in o minor key.
| The steps by which the case Of Stokes has
reached its present level are full of instruction
to those who have the good of the community
at heart. After the Coroner's inquest an in
dictment was drawn against Stokes Motions
| to quash the indictmentwere wrangled over for
some time, and at length the curious spectacle
was offered Of petit jury trying
the Grand Jury for passing upon the indict-
ment The indictment was sustained and
Stokes was called upon to plead towards the
latter end Of June, 1872. No point had been
gained but delay by the prisoners counsel;
and what is to be complained Of here is the
looseness Of the law that permitted even
wealth and hired talent to retard the course
of justice. The trial lasted from the 10th of
June to the 18th Of July and resulted in dis
agreement of the jury. This was, of course,
victory for the prisoner, and until the 10th
Of last December he enjoyed his triumph.
Then began the second trial On the
9th Of January 1873, one year exactly from
the murder, Stokes was condemned to death
in accordance with the unanimous verdict Of
the jury The community had forgotten most
Of its animus in the matter; but the finding of
the twelve men was acquiesced in. The two
long, wearying trials had put the State to
enormous expense, not to speak of the ex-
pendture caused by the frivolous trial of the
Grand Jury in the first instance The Courts
had been occupied with the case during weeks,
and result had been achieved which looked
final. We state all this that the weightiness
of the blunder may be apparent which has
saddled the county with renewed expense,
which has devoted beforehand weeks Of valu-
able time to the third trial of the prisoner, and
which, above all, tends to weaken the conf
dence Of the people in the administration of
justice.
We are to have third trial Of the man who