New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1873-02-10
THE COURTS.
PLEAS FOR STOKES.
A MOTION FOR A STAY OF PROCEEDINGS ARGUED
BEFORE JUDGE DAVIS.

A MOTION FOR STAY OF PROCEEDINGS ARGUED
BEFORE JUDGE DAVIS.
The rlmor was current on Saturday that
Judge Boarman had denied the motion for new trial
made by stokess counsel on the ground OF irregularities
and newly discovered evidence Inquiry, however,
proved the report TO have been uDounded, and dis
patch from Ithaca dated the sth states that he Will do
eide tho motion this week On Saturday an argument
| occupying FIVE hours In delivery, was made by Mr.
Treman before Judge Davis sitting In Chambers OF the
Supreme Court. upon motion for writ or error ana
stay OF proceedings This application Is for the purpose
having the bill OF exceptions presented TO the Genera
Term In March the motion before Judge Boardman Is
denied Messrs. Tremaln Townsend, and Dos Passos
appeared for Stokes and DisrctAtorney Phelps repre-
sented the people.
Mr.. Tremain's argument began with the proposition
that stay OF proceedings should be granted all cases
where doubtful question presented, either in eX-
ceptions intrinsic matter not appearing directly In
the bill OF exceptions He cited various cases to show
that II there we're any material doubtful questions the
Court bound 20 grant STAY OF proceedings until
they could decided by the appellate tribunals He
cited especially Fosters in which the Court OF APP
peals in view OF newspaper COMBINATIONS, had while
sustaining the case approved in words the granting Of
stay proceedings and bad said that no question could
be trivial IN capital case. This remanded by
the Judge who tried 1t to Judges Of this district with
prejudice and he should not insult this Court by
There two bills Of exception in this case and he
claimed that both OF these properly before the
Court There a special plea put in by the defendant
containing different pleas, arragnng the cOmpo-
ston of the Grand Jury having been 80 made up as
to make 1t Grand Jury at ALL On six of these pleas
demurrers interpOsed but the seventh averrng
preiudco 10 the prisoner trial had, and on that
trial the Court Judge Cardozo, took the matter away
the Jury but in doing said that the question was
an doubtfn that shoud the result the principal trial
ire WOu he IL
decided Here judicial decision bys Judge OF TINS
very that the question one OF such d0uD az 70
require the approval OF higher court He argued that
the matter material He cited case where the prs
Se tried by the Court and the General Term held this
error, and that the prisoner could not waive ms
ceeded 20 present the exceptions on the trial ITSELF and
claimed that Of these exceptions were fatal TO the
those 70 Manohester and Luysar They both admitted
they had opinions formed and yet both were allowed to
sit as jurors under these exceptions manchester au
mitted that he had said IL he went on the jury |
he would hang him quicker than LIGHTNING though
he said 1t Joke. His own state |
mens were stronger than the statements which were
cs ee wa but one Of - The question then came on The
cOnsttutonaity Of the Jury law and this was no light
tine first Hall trial. he had been at first IN favor OF It,
but he did not xpect TO see Illustration OF 1t
diced He had received that very morning by express
decision given after very thorough discussion that
ttutnna The Constitution of Tennessee on this point
was little than reenactment of the United states
Mr. Tremain then passed over the exceptions to the
evidence, and took up the exceptions to the |
charge, and first TO that portion OF 1t which de- |
cared that the fact OF the killing being proved the law
presumed murder. This not the law In this
State. was that the jury might infer premedita
ton from the deadly weapon or from the crcumstances
but that different thing from the proposition OF
the charge that the law presumed murder from the kill
ing Judge Gould had made similar ruling, ana the |
Court Of Appeals had explicitly and directly 0Verruled
his ruling lie recalled the Judges charge that the
prisoners testimony must be received WITH great as
trust The jury must find the intent 70 Kill they can
not be relieved from that duty by any presumption OF
law. Not even the common law, which did presume |
malice, went far that, and under our statute |
held that there must be finding by the jury
OF premedltated design TO Kill IN TACT ana not as
presumption OF law The next point was that the
Court had introduced theory as TO the pistol found on
the stairs which no one had suggested before, namely
that the pistol by Jenny Turner aud others IN
fact the prisoners pistol IL did reconcile some or the
testimony the expense OF charging the prisoner
with perjury aud cOntradictng Thomas Hart 1t was !
really hypothesis unwarranted by the evidence, ana
the suggestion by the Court OF such hypothesis
well settled be good ground for a new trial. Mr..
Treman also alluded in detail TO the exclusion as wen
the admission OF certain portions OF the evidence and
discrepancy betweeni the statements OF some OF
the witnesses Powers and Crockett for instance, where
Capt Burns allowed to explain lt by recitng con-
ver5atlOn aleBeu 10 nave Occurreu aeI no WIG
pistol The absence OF the prisoner during part OF the
trial also commented upon -
The argument being concluded, Mr.. Phelps rose TO
reply saying that he had not himself tried the case
he was prepared To argue the motion The counsel
had said argument before Judge Boardman that
ought not to take part in the argument he mad mad
no time really examine IT, and must trust 1t to his
Honor's and examination not being able 10 relieve
his Honor by any aid In the matter.
Judge Davis then inquired whether he ought to con-
slider questions arising under the bill OF exceptions
on the trial Of the special pleas HE suggested that the
special pleas did not>invove the merits as TO the
prisoner but only To the indictment itself.
Mr. Tremain insisted that. under the Language OF the
statute and the decision in the case OF The People ag
Grant, the whole record was TO be considered.
Judge Davis In the end, asked counsel to submit him
authorities, and taking all the papers, reserved his de-
cision.