The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-07-04
THE sHARKEY-DUNN HOMICIDE.

The Motion for New Trial Denied
Recorder Hackett's Reasons for Deny
ing the MOtion-Sharkey Sentenced To
BE Executed on the 18th OF August
Application To BE Made for a Stay OF
Proceedings.
Alter repeated delays since the conviction OF
william J. Sharkey for the murder OF Robert
Dunn the proceedings IN the General Sessions yes
terday finally terminated the jurisdiction Of this
Court over the case. The court room was crowded.
as lit was expected the Recorder would render his
decision upon the motion for q new trial
an expectation that was not disappointed In con-
sequence OF the absence however, OF Mr.. Charles
w. Brooke, the prisoners counsel, some delay
CURED; but at length MI. Brooke arrived and
Sharkey was placed at the bar. He marched from
the prisoners box in the rear OF the court room
attended by his three brothers, all gentlemanly
looking young men. He evinced no emotion and
seemed, indeed, the most unconcerned person in
the room. Recorder Hackett then read the follow
tng carefully prepared opinion embOdying his de-
cison in the case, which, it VIII be seen,
accordance with the general anticipation-a
denial Of the motion for a new trial. Owing to the
interest attaching to the and the elaborate and
exhaustive explanation OF the rules oflaw govern
ing the case. we give the opinion in iull.
RECORDER HACK ETT's OPINION.
The Court OF Appeals ruled in the Langan case
(39 N v, Ss) that erred in substantially denying
on my minutes motion lor new trial without
hearing argument , have therefore ax9lded any
The views OF counsel on this motion. Upon The
title page OF the volume OF United states Circuit
Court Reports, by the Hon. John II. Dillon IA most
eminent jurst) appears the following motto, cred
tied to Lord Chancellor Brougham with an en-
liehtened Bar and an int llgent people the mere
authority OF the Bench will cease to have any
weight at all II 1t be unaccompanied with argu-
motto file The following reasons Tor denying the
motion for new trial, both on alleged irreguarity
and merits My first impressions were IN favor OF
upon alleged irregularity. However, for pru-
dence toward the people and justice TO the
prisoner have read them. They do not, however
purport TO show irreguarity, but only TO explain
why three jurors joined III the verbal recommends
tion to mercy. This recommendation was not and
cannot be made legal part Of the verdict. The
latter can only be guilty or not guilty. H. Bishop
Or. Prac S2s). This author adds (sec $500 =:
.'When the verdict has been rendered or recorded
1t conclusive, and cannot be retracted by
all OF the jurors. Neither can juror be afterwards
heard to object that he did not consent TO the
d Ct thus rendered" Even had the juror presented
affidavits explanatory OF the technical verdict OF
a Judge not TO award weight TO them. 'Such prac-
tice," said the great Mansfield, "would open
sac TO Verdict empa0n wa acS Sere
could be found upon the jury man
who could be induced TO throw discredt on their
People ex rel John Hosmer VS.. Columbia County
Court OF Common Pleas q Wendell, 2e). OF and in
Cornell Il Parker, C. c., 256l follow the same rea
sonIng and decision. The first OF these cases was
deliberately argued by Ambrose L. Jordan and
Elisha williams and the latter by the late District
Attorney Blunt and the late Horace f. Clark with
whom was Henry L. Clinton, Esq. In the ar2u-
ments and decisions the hearing was exhaustive /
may here remark that cannot conceive where the
error could be IN declining to hear from the jurors
reasons in behalf OF the recommendation II IL is
correct practice to allow them TO explain their
verdict IT certainly cannot be error 10 refuse to
hear their reasons for reporting TO the court pr-
vate requests OF humane but not legal character
To the same effect People vs. wilson IS Abb, 1872
So much Tor alleged lrregslarlty. Now
AS RESPECTS MERITS.
The Court OF Appeals have decided that this Court
may set aside a verdict on the inertia But the
question, therefore. is considered by the light OF
this paragraph in ! Bishop, on Criminal Procedure
sec. s4y:-"It " not easy 80 see how Judge. hav-
1ng It legally IN his power to set aside a verdict
eau sentence defendant to Imprisonment or TO
DEATH when, for any reason which presents Itself
iudicially 10 his understanding, his judgment re-
fuses to concur with the jury In the conclusion OF
guilt" In Sharkey's case my reviewing judgment
Concurs with the jury. have Feread ali the testi-
m0ny, all the requests OF the counsel and my
charge In the spirit with which, under the statute
OF 1855 botn the supreme Court aud the Court OF
Appeals must necessarily review hereafter upon
Sbis statute. The head note Of People Jeremiah
O'Brien. 80 n. ", 21s, reads :-"Chap: 337 OF
The Laws Of 1855 was passed for TIE
advantage OF the accused, that new trial might
SUBSTANTIAL JUSTICE
REQUIRED it, even though the record dscosed no
error.n Ii is SAID there was error In taking away
rom the Jury the question, "Did Sharkey XII Dunn
at all ~ True. remarked that the killing was ad.
united by the counsel the stenographer's notes
SHOW, and the admission s not against coma tltu-
1ona right (H2ecdnceri.f The prisoners dis
tjnguSbed counsel puts upon his brief that ''in
1elonies the risoner has no power to admit any
tElng.p am not furnished with any case ID sup
port OF thls proposition. and all the elementary
books and decisions go the other way. The rules
or evidence and the practice In civil and criminal
cases concerning admissions are the same The
charge 10 the Jury shows this sentence III you
Snd thst tne Robert Dunn named In the Indictment
&c dead and dled IN consequence OF q pistol shot
Sred by the hand OF the prisoner then your In
guines wlil De, lis he amensbe 10 legal punish
ment, and II so, what u the legal character OF his
doubt rs TO the killing you should acquit.u Thus
she question OF the killing was technically left to the
Jury. Yet, apart from the admissions of counsel