New-York tribune., 1873-05-23
JUDGE DAVIS'S CASE.
TRAINS FATE.
A DEFENSE or JUDGE DAVIS.
rLltn- ~ Thc TrIhnne

Davis and therefore no bias should bo imputed TO what
follows.
Your structures upon his in the Train ease de-
serve answer What are the conceded mcisi the
people offer evidence misdemeanor indictment
tending conviction OF Mr. Train and rest their case
The defense under the general issue Of not guilty aFs
ltself OF the following provision Of the Revised StHtS
No act done by person IN state Of insanity can Do
punished ofcnse." The defense did not deny 1if
Trains act. But 1t expert who testified that
Mr. Train was person in a state Of insanity when ne
did the admitted act The people immediately admitted
that which ended the controversy OF fact and left an
absolute question and Judgment Of law that therefore
Mr.. Train must be acquitted.
Judge Davis then had in memory, doubt, what tho
Court OF Appeals in People agt. Bennett said. 1t Is
case decided late April 1872, and win be found IN
49, N Y Reports And thus at the foot Of page ll the
case per Chief Justice Church: 81 no rea
son why the Court. in presenting only question
Of law, may not instruct the jury 20 acqut the prisoner
or 10 direct acquia and enforce the direction. nor
why t is not the duty of the Court 10 DO 80" Judge
Davis also knew OF statutory provision that will be
found in chap 135 Laws of 182, which airms the com
mon law usage that "A who sets mp insanity
and is acquitted for that reason shall suffer this
reason be stated in the verdict Did not
Judge Davis therefore properly direct the verdict 1t
one IN favor Of Train. IL legally necessary
and appropriate ratfy his defense The losing party
agree to upon mere statements. Consequently Mr..
Train not being losing party had no right 70 poll the
jury
As TO Judge Days's sending Train to asylum. his
right 10 do after the verdict Is discretionary one
with which neither the Jury az any stage nor tDe cOu
sci at that stage could interfere. judge IN such
emergency Is simply to " carefully inquire ana asceI.
tam whether MS insanity ~ ahV degree cOnlihues.
toec 81 OF the statute last quOte II he ascertans me
(tnd he Judge OF the carefuuess OF the iu-
qrY aud its resut, then the jndge may send 10 tAe
state Asylum the acquitted prisoner. ....,
The acts Of Judge Davis were emnentY and strictly
pursuant TO law But perhaps his manner was objection
able Notnng IS arbitrary from the Bench whieh CHS is
chooses 20 infuse into the judiciary quick decision,
prompt action, and ndispOsitlon TO potter over
obeys rules OF T surely TnE TRIBuSE ought 10 be the
last journal to crtcse judicial behavior that presents
the preemnent characteristics Of the British Courts
where JuOrrs and not barIisters determine the con
yenience Of julies, parties, and witnesses. ROSCOE
Ae1-Y York, May p, 1879.
THE TRIBUNE has not attacked the law of Judge
Davis but his manner It is not enough that a
judge shall be learned, for such defense would
have been applicable in the case Of Barnard, who
knew law as by intuition. We are disposed still to
think our opinion of Judge Daviss conduct fair and
that it was called for. And we believe that
neither he nor the Bench generally will De injured
by such criticism. Both Bar and Bench we believe
to have been too long exempt from review by the
public press.
JUDGE DAVIS TECHNICALLY CORRECT.
To the Edttor Of The Tribune.
SIR: think you are unintentionally doing
injury the best Judges Of the Supreme Court
Of STATE by your articles Judge Daviss conduct
in the Of George Frances Train; and I would ask
your permission TO make few remarks concerning the
questions involved promising that have no personal
acquaintance Of any sort with the Judge.
Train put his trial for felony. When the de
fense opened they proceeded offer evidence Of his
insanity at the time Of the commission Of the ofense
Mr.. Lyon the Dsrrict-A AttOrney, thereupon admitted
the insanity in open court. As both parties agreed 10
this question Of fact remained for the jury Let
not be forgotten that ues only summoned TO pass
upon disputed questions OF fact when both parties
agree upon q statement Of facts there Is no
further province for the action OF jury,
and the question simply arises, the facts being
and what is the law applicable 70 them and 1t IS
the province Of the Judge 20 decide that Now, in TINS
case the statute requires that the Judge shall instruct
the jury, II they nd the prisoner insane 10 bring in
verdict OF Not guilty on the ground Of insanity" and
as it agreed that the prisoner was insane II be
came, OF course the duty Of the Judge TO instruct the
jury lind such verdict Suppose both parties had
conceded that the prisoner had not committed any crime
it would have the duty Of the Judge 70 instruct
the Jury TO find a simple verdict Of guilty" and
juror could been heard TO say that he did not
coincide in the verdict In such the verdict Of the
jury Is mere fOrmaly that might as well be dispensed
WITH if such were the law. Only week or two ago
named Leary think, tried before Judge Davis
for murder; sides argued that he insane and
the Judge directed bucn FeIulcl as nc lue
Tram case and sent the homicide 70 the Asylum, and
nobody dreamt Of finding any fault with his action.
Thus the verdict having been entered in strict accord
with law and precedent II became next the duty
Of the Judge inquire TO the present mental cond
ton OF the prisoner to exercise his discretion to
whether prisoner should be released sent to
asylum for the protection Of the community. Judge
Davfs so in0urad of the urisOner's own witness Dr.
Cross and informed by him that the insanity OF the
prisoner stl continued wheTeupOn, lie performed his
81.
the Asylum. Surrey, ii DR.. Cross good enough wit
ness on behalf OF the prisoner 10 procure his escape
the State Prison lie good enough witness 10
procure his confinement as under the influence OF CON
tnued insanity. go ,
II Train is sane (Which I very much doubt, the blame
for the result is 10 be attributed not to the Judge or
the Attorney, but TO the prisoner ana MS cOun-
sci, who endeaYOred to escape under the old wewOfn
insanity dodge II they did NOT believe 10 tnat defense
they had no lght 70 O1er evidence OF ~ II Ihey uu
believe IN It,, they had no sort OF right TO com
PLAIN that the Judge directed verdict as re-
quired by law, and that ne TOOK the opinion
Of their own expert as 10 the cOnuhuaLoh
ally beeved-that Train ought 10 De inearceraEed either
in prison in asylum for the publication or such
Dlasphemous ana uly st',i IN a. NE II a'g & - ~
that the community may DE protected Irom Ihe repe
tion Of so foul an outrage and think wnen you ma
tuTely consider the conduct OF Judge Davis In the light
OF the plain mandates OF the law you VII no ulseTI
bring TO bear against him the weight Of your powerful
and just journal. Yours, LAWYER.
Yeis- TorE, May p. 1919
rThis writer, like q lawyer sees only the legal
point involved, and, because the Judge las we said
Yesterday was technically right in his decision,
apprehends danger from his arbitrary and
unjudical demeanor. 1t is the cause Of the
people and not of Train in which we wrote.
They have right TO demand of the
Judge whom they have just elected for IA years con-
duet which shall not degrade his Office or impair his
usefulness. We venture TO say that no act of any
Judge since the day of Banard's impeachment has
caused more anxiety doubt in mems minds than
that of Judge Davis
We are the most anxious. however that no word
of ours shall be construed as censuring the sound