The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-02-15

did they stop the examination or make any objec-
ton. But one OF the prisoners counsel did make
the trial He did request one OF his associates 10
make
MINUTE or THE SAME FACT,
and 70 call the attention or one or two gentlemen
sitting to the same fact. Such associate noted
the absence 80 carefully to be able to say that
oerapners minutes az written out. were S tn taken
All OF the prisoners counsel knew 1t and kept
silent. What Coroner Young testined to in the
prisoners absence does not appear. Nor does IL
appear that any OF the evidence SO given was OBJ
jecionabe objected to. 1t is not pretended that
the prisoner was In fact prejudiced by the occur
renee. II is not shown that
THE EVIDENCE OF YOUNG
was coqtroyerted by other evidence. In fact, It
was not His whole evidence might be stricken
out OF the case without harm 10 the prosecution or
benent to the prisoner. He knew nothing of the
ngs upon the inquest and the identity Of the pistol
and other articles produced upon the trial. The
identity OF the pistol with that used by Stokes was
conc sded 1t Is insisted that such absence was an
able feature OF fNh..
THE OBJECTION Is IT'S BAD FAITH.
II is EFFORT on the part OF the prisoner and his
counsel to take advantage OF their own wrong.
IL is the duty Of the counsellor to aid the Court IN
the just administration OF the law. In violation OF
this duty counsel for the prisoner have permitted
what they claim an irregularity to occur. and pur-
posey omitted to call the attention OF the Court to
IL, that 1t might be remedied or prevented, In the
hope OF availing themselves OF 1t to overcome a
possible adverse verdict. 1t is now offered as a
TcdsOu fOT u ueW tTl8k IL Wu6 ueCebSdTy LHdt Tie
prisoner should be present during the trial. 1t
was his right. The law gave 1t to him for his ben
e1t II he was deprived OF that right it would be
error But II that right Is given him, and he for
moment leaves the Court without It's knowledge or
the knowledge OF the prosecution. for temporary
purpose, as in this case, 1t would seem that the
- THE LAW WOULD BE sAcRIFrcED
to Its shadow to hold II in error Especially when
there is not the slightest evidence to believe or
even suspect that he was harmed by the proceed
ings had In his absence. Counsel win cure most
irregularities as In the case Of Beebe VS.. the Peo
pie, Hill, 80, where Nelson. O. j.. says cit is not
for the prisoner to take advantage OF the irregu
larity, as the indulgence was granted on his app-
cation and Tor his benefit" So in People Ratt-
bon, 81 Weede, SIP, the Court says 1.-THE prisoner
may even waive his trial at the hands Of a jury on
the merits by pleading guilty. Having this power,
one will pretend that he cannot consent to any,
thing less. man cannot legally be tried as Access
sorry to felony till the principal be convicted.
Such trial is
CONTRARY TO ALL ANCIENT AND FUNDAMENTAL
PRINCIPLES OF LAW,
yet says Coke ii he goes to trial without insisting
upon the objection, he shall be holden to have
waived it," These principles are approved OF and
deemed applicable to capital cases IN stephens Va.
The People, 10 New York, 65:-"There can be no
good reason why in such cases the Court should
deny the existence or refuse the application OF
principles consonant to common sense and the
as well as the accused" &C. The question pre-.
OF substantial right. That cannot be claimed.
But by his own voluntary act with the knowledge
ana consent or his counsel ana by his own fault
he creates an rregularlty, and now seeks to benefit
thereby. To recognize such principle would be
A PREMIUM UPON wRONG-DOING,
especially in where the prisoner has suffered
no injury and has IN no respect been prejudiced.
Substantially and within the spirit OF the law the
prisoner was present during this trial. The alb
sence OF the Judge twice for about five minutes
while counsel for the prosecution was summing up
to the jury. is also urged as an irregularity. No
complaint rs made that anything improper &C.
Cured during such absence, that anything objec-
tonable was said or done, or that the prisoner was
In any respect prejudiced thereby. Without con-
ceding that such act was improper, irregular or
dangerous, many OF the considerations In reference
to the absence OF the prisoner are deemed peril
nent The prisoner and his counsel are present
and make nc objection. The remarks OF counsel
not addressed to the Court, nor was 1t essen
tal to the orderly progress OF the cause that the
hearing,
WAS WITHIN FEW FEET OF THE COURT ROOM
and substantially controlling its proceedings
There is nothing in the occurrence that wronged
the prisoner or benefited the prosecution (BaX-
ter vs. The People, Gilman 1ll.), 1851. The
opening speech OF counsel for the prosecution Is
suggested as irregular and improper and q ground
for new trial. reading of that part set forth in
the affidavit furnishes but weak ground for the
suggestion. If remarks of counsel are Objectionable
1t would be well Tor counsel to make their obiec-
lions at the time. The Court has responsibilities
enough without being called upon to object to the
line OF argument which counsel may choose to in.
dulge in, unless 1t is
GROSSLY OUT OF CHARACTER.
The opening remarks were not OF that kind. It
would be asking too much TO set aside vertlict
and grant q new trial upon the pretence that the
regularity to be established by aidavits. 1t is not
an Irregularity, however, Objectionable In form,
but the subject OF objection and exception In
like manner with any other proceedings in the
trial. Upon the trial the evidence OF the prisoner
tended to prove that Fisk the deceased, came up
the stairs towards the prisoner with pistol in his
hands, and that the prisoner shot Fisk in selfde-
fence. Several witnesses were called to show that
Fisk carried pistol, that such pistol as he car
rIed was picked up on the stairway near where he
fell and was carried away.
THE AFFIDAVIT OF MARY BEAN
shows that she saw Colonel FISK come out of the
entrance door after going in take pistol out OF mis-
pocket. go back into the stairway entrance, and
soon after she heard two pistol shots, she being
then on the entrance to the stairway. Upon this
affidavit new trial Is asked upon the ground OF
newly discovered evidence. This evidence, so far
tive and adds nothing to what was testified to
upon the trial Beyond that, so far the affidavit
shows, Mrs. Bean does not see the parties when
the firing takes place, does not know their relative
positions, does not see Stokes at ALL does not know
WHAT FISK WAS DOING WHEN STOKES FIRED,
nor any facts immediately accompanying the firing
characterizing the motive and purpose. 1t is
not, therefore, material as to furnish Just
ground for believing that 1t would AFFECT the
covered evidence are addressed to the discretion OF
the Court, and should not be granted unless the
Court be satisfied that such new evidence is 80
pertinent and material that It would probably pro-
duce different result on such new trial. Is Cir.
and Wal. on New IT., 1043.) The right OF de-
fendant to move for new trial In this Court after
verdict and sentence upon the Irregularities al
legged Will not be considered, for the reason that
the conclusion reached upon the merits OF the mo-
ton render It unnecessary. The defendant will
not be preiudiced by any neglect to decide that
point. IF the Supreme Court will hear this matter
by way OF review OF this decision or as an inde-
pendent question the defendant can again present
IL there. But II this motion has been rightfully
heard and the decision be final and conclusive,
so FAR AS IRREGULARITIES ARE CONCERNED
II Is submitted with the confident belief that the
result Is fairly due to the law and the facts in the
case.
The motion for new trial is therefore denied.
stokes Demeanor at Receiving the News
OF Judge Boardman's Dccision-Dcputy
sheriff Stevens Order.
A reporter OF the HERALD called at the Tombs
yesterday afternoon to see Edward s. Stokes. Mr..
Finley, the warden, showed the reporter an order
from Mr.. Joel Stevens Deputy Sheriff, forbidding
him to allow any one to see Stokes, except the
relatives and the counsel OF the condemned