New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1873-11-13
RosENzwEIG's DISCHARGE ORDERED.

JUDGE sUTHERLAND's DECIsIoN--A DELAY OF q
HOURS GRANTED TO THE PROSECUTION.
In the Court Of General Sessions yesterday
Judge Sutherland rendered a long decision upon the
motion made before him Sept a TO discharge Jacob
Rosonzweig who was sent TO the State Prison for the
murder of Alice Augusta Bowlsby. Rosenzweig was
indicted for under the first section of the act
Of May 6. 1862 relating 10 a0ortons. by which sec
ton the oense declared to be granddaughter IN the
second degree At the october Term Of 1871 he was tried
md convicted and sentenced to the State Prison for
,eyen years. The Supreme Court on writ OF
error sued out by the prisoner at the No
yember General Term OF 1872 reversed the Judgment
or sentence on the conviction, and ordered a new
trial On April g. 1872 the Legislature passed an act
relating to aborous and other ike oifenses, the hfh
section Of which IAN acts and parts OF acts, incon
sstent with this act hereby repealed" After the
General Term OF the Supreme Court made the order
granting new trial. the prisoner was permitted by the
Court TO withdraw his plea OF not guilty 10 the ndiet
ment and plead certain matters specially IN bar OF the
further prosecution Of the Indictment Awaiting himself
OF this permission, the prisoner put IN Two special
pleas; by the first OF which he sets mp MS
former trial on the indictment, and Lis conviction
and sentence, aud by the second, the passage 10y
The Legislature OF the act OF April 6, 1872
averrng santiay by it the act of May 1862
was repeaed and that there was no law in existence
under or by which he could be tried again, or under or
by which he eOuld be sentenced again tried and con-
veted To the first plea in bar the District, Attorney
nut in replication admitting the former trial and con-
VjctIon ana Judgment but setting up the reversal
and Judgment and tue order grating new
ring that the Judgment was reversed and new traI or
dered the former rla 10 TINS the prisoner
demurrcd, and the Dst1ctAttorney joined III the oe
800,
the question whether the parts OF The hrst sections
OF 1869 ana 1872 relating 10 the punishment were neon
sstent punishments for one ana the same oIense re
then cited numerous authorities, and SAID that ne
thought TWO things inferraOe from thennrst the
rtrfVF fr.lg hat " hHn n
much OF prior az defines the ohcnse' or the dehn
ton of the OeDSc the second statute includes or en-
the ofense defined by me 1rst statute ana me
second statute provides 0iHereht pehaIly Ior ule
oense either the part OF the second section re-
lsting 10 the penalty Is hGonSlstoat Win art
Of the first statute is repealed as 10 an
ofcHse committed after the second statute taxes
effect with without words OF express repeal III the
statute aud second, that although the second
statute provides the kind OF punishment as ne
first allows the amount degree or IL as the
FIRST, If the second statute also authorizes either
the punishment by the second should be regarded
as a different and within the principle as stated
The parts Of the first sections Of the acts OF 1869 and 1872
relating 20 the punishment are INCONSISTENT provisions
Ofense against the hrst section OF the act OF 1872
and consequence, the act o! 1872 would have I'M
the fret section OF the act OF 1869 relating 20 the
punishment, had the act Of 1872 contained 40 words
in view OF the repeal which the act Of 1917
contain without saving words as TO prior onenses
that the act repealed by s passage the part OF the first
section relating 20 the punishment and
the prisoner Rcsenzweig II tired again and convicted.
eoud not be sentenced under the first section OF the act
OF 1909. The prisoner should be discharged from n-
prsOnnent now without going through the useless cere
mOny OF second trial If there is no law III existence
under or by which &c could be sentenced II convicted
Rgain To the second special plea OF the prisoner there
must be Judgment for him on the demurrer and he must
be discharged.
Messrs Howe and shafer asked that ROsenzweig be
Assistant Distot-Attorney Russell asked that he be
allowed untl lonOrrow to conclude the case Tor the
prosecution Inc request was granted, and RoSenzweig
was reeommltted 10 the Tombs.