New-York tribune., 1873-05-27
STOKES'S CASE.
THE LAST APPEAL


PIIELPs-THE CASE FOR TIE PRISONER AND I'm,
| CASE FOR TIE PEOPLE.
ALBANY, May 1.-An argument in behalf of Id
ward g. Stokes on the final appeal for a new trial
before the Court Of Appeals, was delivered to-da,
by tho Hon. Lyman Tremain. Below will be foupd
summary Of the leading points OF fact and law Al
presented:
Judgesl In closing this opening argument allow ne
to ePitomize the which are discorei Ivy tb,,
record and OF which this prisoner iustly compain NJ
protected by the mandate of the Constitution fro
trial unless an indictment was found against him by.
grand Jury selected according law. This indctm,al
was presented by illegal body, large part Of which
taken from list not authorized by law, and all a,
| whom illegally summoned. lie interposeI a sue
cia plea setting up these ilegllities and Jury wa.
summoned 10 try IT, and although the Presiding JUDI.
announced that the prisoner had proved every fact t
up In his plea, yet the Judge pronounced yerdo,
against him. and refused allow Jury 10 be asked
whether that their verdict so through with
| even the forms or the law.
At subsequent term the prisoner again interpos.d
his objections to trial upon the merits, which wore
| overrued
Then his trial upon plea entered under the direc-
ton Of the court evidence taGen during the aA
sence OF the prisoner. error which has been bed
fatal by this court and during portion OF the
trial the judge himself absent from tho court TIE
jury acted part upon evidence not submitted open
court but upon their examination OF tho promises
where the alleged homicide was committed, and also
upon their examination OF pistols out Of court and
their perusal Of newspapers. These were irregularities
which have been repeatedly held 70 adOrd sufficient
| ground for now trial.
Several OF the Jurors in tais case had already pre-
Judged the and yet, although the fact clearly ap
peared upon the trial Of challenges such Jurors per-
mitted TO sit In the cause and when IL afterward sp
peared that three Of them had declared before the trial
their determination TO hang the prisoner all relief was
| still denied to him.
On the trial of the prisoner the learned judge com.
mtted of the most serious character against h
The jury instructed in the most positive terms that
prisoner killed tho de eased the law declared
killing murder, and the burden thrown upon tho
prisoner OF proving his Innocence strained attempt
Is made bridge over this by reference to auhor
ues, and yet in criminal has any court refused
upon writ OF TO a Judgment when the
Judge has committed against the prisoner In h
charge and exception duly taken to such charge.
On the trial the prisoner bad corroborae his
evidence that deceased had first assaulted him VITA
pistol. This court has held that evidence OF n-wl
competent evidence tending 20 show perpetratiOn OF
an assault III connection with other proof But tue jndgo
refused admit evidence Of -wl and deadly threats
on the part OF the deceased toward the prisoner
The reason assigned for considering his an immaeral
matter by one of the learned judges OF the Supreme
Court that tho prisoner not harmedlby tins eXcu-
sion. The only proof OF threats which was admitted
from the prisoner and Miss Williams, the latter VI
whom sought be impeached while the Judge him
self nsrucs tho jury that the prisoners evidence must
be received with "hestatOn and suspicion" AS 70
the evidence OF character alluded the judge, also in
his charge destroys the efec: OF that proof which
had been gwen without olJeonon, when he declared
that 1t should only be considered so far as IL proved FISK
to be a man OF personal violence ,,, . -, l.,
On the trial the prosecution vas allowed 70 give 10.
upon the plea that the matters sought be proved we're
On the trial evidence showing the presence Of appre.
hensOn the Of the prisoner concerning FISK was
entirely exclued although. IN cnsrSe oI ,h, hnrGe,
the heart OF tae prisoner, has been uniformly aldg'd
The Judge admitted evidence that the prisoner had
indicted for another ofnse, although the lsoner
had not opened the door by giving any Affirmative PROOF
Tue CONSTITUTION protects the citizen from being
Obliged TO give evidence against hmse yet tue Judge
admits that the prisoner, in tue presence VI
| Fisk remained silent during conversation between
evidence Is used to prove that tue explanation given Of
transaction by tue prisoner under oatn upon hs t
Opinous upon questions OF fact. not matters VI SCI
ence. were received against the prisoner Experiments
proving the asty Of evidence Introduced by the prose
cution had been made, bat the result thereof was ek
cudec. Hearsay evidence ana Illegal proof tendngte
| impeach wituess called by the defendant was ad,
mted, aud legal proof overthrowng the evidence VI
| one Of the peoples witnesses rejected.
One reason assigned by the Supreme Court Tor dis
regarding these errors was the signal lDpartidhV ef
hibted by the court upon the uial. while Tue record
proved not merely the errors 10 whch txeeptOhs nla
been iDterposed but also errors IN the charge wherein
|
dscredited the face OF judgment OF this court Do
carng that that tue witness under AL in-
dicenent was no impeachment OF his evidence La.
same charge alluded 10 the Disagreement OF iormei
jury ia this msior,u une and an act 0f IN
justice" The same charge presented theory Ut wal
with the facts which tho counsel Tor the govern
mens mad not urged. aud wncu wne II assumed thAt
tue evidence OF the prisoner was false declared sies
| theory more IN harmony with the e'ldenco lhah aAy
| other that had been suggested.
IL Is respectfully submitted that no conviction, 1
capital has been brought into tuis cout fof
review 50 tainted errors iesalitles thn
|
counsel FOR the prisoner disappointed learn
ing that the Supreme Court had afh med judgment Ia
this aud felt that they could only look ~ you,
Judges for relief being assured taat your decision wal
DO nnuenced solely by the clear cold ght OF precedeHt
and law. Iu civilized aud Cdrisau state criminal
justice cannot properly be administered ON tho theory
that the viii justify tue MEANS aud We appeal " tns
s0under nObier .and more humane doctrine recently
enunciated by this high court tnat error upou Tia.
trial Of cuzen for nls lie can be regarded as Trivial
aud unlmpOrtant AL We ASK Is, at TIE prisoners case
shall be submitted To jury Of the country
and this we clam, not as a favor Out as rgnt. II,
after fair aud Impartial trial conducted according "a
law the prisoner shall again nc convicted OF the aIroco
crime OF murder III the nrs degree the community wI
only have suffered little delay, while the purity and 10
tegTGy with which justice IS dduniseredin the STATE NIL
be uphed ana malhtaIeu' II, Oh inc other bahd' ths
such trla shall that the prisoner wds Jas
titled in what he did, at most that his orenSe waS 40
Inferior grade Of mansauguteT tuis court VIII nave
earned the grateful consideration. merely OF tue
Shield between Edward s. Stokes and judicial nOucids
| perpetTated according " the forms OF iaw
District Attorney Phelps made the following points
l. The Judgment OF the Court below sustaining ths
demurrers interposed by the DistrictAtOsney ths
| sia special pleas OF the prisoner, correct.
q The seventh special plea Leng negative IN its form,
required an affirmative replication, the only aihrn
at We allegation Of prejudice 10 tue prisCnr, from the
alleged irregulartY. distinctly nekati,ed 10y The
| replication. There not particle OF evidence at
duced upon trial tending 10 show prejudice IN fact
to the prisoner Tne proceedings upon the ral Of hat
plea we've, effect, trial O the regularity of the oF.
ganizatiOn Of the Grand Jury by which the D0c1ment
| Was found The irregularities alleged, assuming them
10 be all proved could be oT no ava to The prisoner
g. The Bill Of exceptions, slgBed by Jusice Gspozs
taken under the sse raised 10y the seventh special pea
and the order OF the Court directing that the salne