The New York herald., 1873-10-09
Opening Legal Tacticssof the
Defence.
Objection Raised and Argued on the
Legality Of the Jury Panel Sum-
moned for the Term.
Judge Davis Will Decide the Point
To-Day.
STOKES APPEARANCE In COURT.

The opening proceedings IN the tnlru trlal OF
Edward s. Stokes, for the shooting OF Colonel
James Fisk, Jr., at the Grand Central HOTEL In
January, 1872, were held yesterday in the Court Of
Oyer and Terminer Judge Davis presiding. So
long time has elapsed since the fatal shooting
ana which caused such public excitement then,
and the fact that Stokes has already been twice
tried for the offence, and that all the facts ana cir
cumstances connecting the victim and the prisoner
IN their relationships with the third principal
actor IN the tragedy, and which ultimately led to
the death OF Fisk, have been elected on the two
former trials, there was very perceptiblc falling
on in the crowds about the court room anxious to
see the prisoner and witness the proceedings that
marked the opening OF the previous trials. No
doubt the dry work OF empanelllng Jury had
good deal to do with this apparent lack OF interest,
and when the case is fairly started the same
anxious crowds will besiege the court room. The
result however to Stokes, in legitimate
defence and the vindication OF the law,
are just as momentous as they ever were,
and the public will await with interest,
though without marked excitement, the termina-
tion OF the third trial which the laws have Afforded
the prisoner to establish defence that will save
MIN from the tate which second verdict Of guilty
would entail The action taken by Stokes able
counsel yesterday might indicate desire on the
part OF Stokes his friends and his counsel to throw
fresh obstructlons in the way OF speedy trial at
this time. But this in fact, is not the case. Mr..
Treman assured the Court that the defence was
ANXIOUS TO GO TO TRIAL ONCE,
but that there was so much OF vital interest
to the defendant in the testimony OF DR..
Tripler, who was the first to treat the
deceased medically after receiving the fatal
wound, that he should claim from the Court the
right in the absence from the country OF Dr.. Trper
TO have his testimony given on the first trial put
in for the defence by having 1t read from
the stenographers' notes. Mr.. Tremaln re-
ferred in this connection to late rulings
Of the judges in England, where malpractice on
the part OF medical men was admitted on trials OF
murder, and in which, the malpractice having
been proved, the defendant was acquitted. In the
case OF DR.. White, Fisk's family physician, who
was temporarily absent from the city, Judge Davis
said that il Dr. White dd not return and be pro-
durable as q witness before the defence was con-
cluded, he would allow his testimony to be read
and admitted in evidence.
In the objection raised as to the summoning
OF the panel Of jurors to serve during the pres
ent term in the Court OF Oyer and Terminer
the first case on the calendar being Stokes, Mr..
Tremain contended that the panel was defective; !;
not that any OF the jurors put on the panel dis
qualified in any way, but that an evident partality
had been shown for the service OF bankers brokers'
merchants and clerks, to the prejudice OF the de-
1endant In the exclusion from the panel OF jour-
neymen mechanics, artisans and laborers, re-
spectacle citizens qualified to perform jury service.
Counsel also alleged special informalties in the
drawing Of the panel. on this point Judge Davis
said that although the only point OF the plea was
that admitted by the District Attorney, which he
was bound to consider, and while, notwithstand-
Ing his mind was quite ar on that subject,
yet he would be sorry that any omission OF his
the result OF the trial might become nugatory. He
would take time to more fully consider 1t and give
his decision OH the reassembling OF the Court TINS
morning.
OPENING PROCEEDINGS.
At an early hour the prisoner was conducted
from his cell In the Tombs and seated in a close
carriage Sheriff Brennan and his deputy, Shields.
driven rapidly to the Court House. Stokes was was
kept in an anteroom until the arrival OF His Honor,
when he entered the larger room and was placed
at the bar, in his Old place.
HIS PERSONAL APPEARANCE
has undergone very little perceptlble alteration
but that may be attributed to a recent severe
attack Of bilIousness, which attack precluded his
t6e cause was first called. He was attred in the the
same outward garments as formerly and he alto
gether looked the same. He sat easy and calmly
little. His counsel are the same as on the second
trial-Messrs Lyman Tremain, J. 7. Dos Passos and
The father mother and sister OF Stokes were
present throughout the day.
Counsel for the People-Distrct Attorney Phelps
also in their places.
Mr.. Sparks, Clerk of the Court then proceeded to
TO their names, and others subsequently reported
themselves present. The absentees were fined
$3.50 each, unless they excused themselves on
Mr.. Tremain, rising, said that he regretted
THE DEFENCE WAS NOT READY.
He would have to ask an adjournment, unless the
District Attorney would consent to the reading OF
certain evidence taken on previous trials. DR..
Tripler was witness on the first trial. He and
Dr. Fisher were the physicians having charge OF
che case OF Mr.. Fisk anu were called by the prose-
suS9 a% SD as Of Mr. FISK White he oU was was n
witness Tor the people on that first trial.
Immediately on sure notice of the moving OF
this trial they got out their subppnas. They
found that Dir. Tripler had gone to Europe Dr.
White, physician In active practice, had, by
was informed that though at the last trial Dr.
Tripler was reported to have gone to South
America he was in the court at the time OF the
last sentence. The defence much preferred to
have these witnesses on the stand, but so anxious
were they to go on that they would consent to the
reading of their evidence; otherwise they must
ask an adjournment.
Mr.. Brainerd then read affidavlts to show that
Dr. Tripler was reported to be in Cnina that they
had had difficulty In finding DR.. Fisher and that
Dr. White was in Pennsylvania.
Mr.. Phelps in reply said that it was only within
o day or two that he had learned that these two
witnesses were considered material by the de-
fence. They had never been summoned by the de-
ience and he could not see how, on this turd trial.
they could be considered material.
Mr., Tremain said that on the first trial the pros
ecut0n mad ielt IL necessary TO nrove all the sur
roundings OF the DEATH so as to exclude the idea
of death from any cause except the bullet wound.
as was clearly It's duty. That offered the defence
the opportunity OF showing that death occurred
rom the injection of morphine. on the second
TRIAL SO confident was the prisoner In the strength
Of his defence OF
JUSTIFIABLE HOMICIDE
sann. smau, ne directed his counsel not to raise this
issue, ana though he, as counsel, thought 1t
mistake, ne yielded To the confidence OF the pris-
oner and ms friends, but only alter taking their
written instructions. The disastrous result OF
snas concession was known TO every one. and he
The Court-Why cannot DR. Fisher stote tbe
material facts2
Mr.. Phelps here recounted the number OF medical
men who had been in attendance on Fisk and
said he could not see how DR.. Tripler who he
understood had lett the country Tor coed, could be
Of use.
Mr.. Treman replied that the testimony of DIR.
Tripler covered period at the very beginning of
Fisks treatment which no other witness covered
including the giving OF stimuants and tho probing
vutfG hrnH rOhp