The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-03-21
AN EFFORT FOR WRIT OF PROHI-
BITiON.

Fosters Counsels Last Resource--An In
formal Application to tho Judges of
the Supreme Court.
Yesterday final and desperate effort was made
by Mr. Allen, OF counsel for the doomed man Fos-
ter to obtain through the Judges Of the Supreme
Court General Term, a further stay OF proceed
ings in the shape of a ''wriG of prohibtlon" pre-
venting the execution OF sentence OF death ON
William Foster to-day at the City Prison, Centre
street, by Sheriff Brennan. This attempt, which
was undertaken as
"A DERNIER RESORT"
by counsel, and with but little hopes OF success,
proved abortve, but only after grave consideration
on the part OF Judges Ingraham. Davis and Bar
rett, OF the Supreme Court now sitting in General
Term.
When the rumor spread about the City Hall yes
terday morning HERALD reporter called at the
office Of eX-Judge Porter Fosters leading counsel,
on Broadway, anc ne there learned that that gen.
tleman was confined to his home by illness, and
that he had abandoned all hope for Foster, belev-
ing that there was now
NO MOTION LEFT
which could be made in Court that would delay his
execution. The reporter subsequently learned that
Mr.. Allen, who was associated with the late Sidney
II. Stuart In Fosters first trial, and who, though
he now fills the position OF Chief Clerk In the Dis
ested In Fosters fate ana has appeared for him on
several occasions, entered the Sherin7s office
at an early hour yesterday morning, and
as Fosters counsel asked to see the
document which the Sheriff had received
from Governor DIX announcing that the sentence
Of Foster was suspended from the 18th OF March 70
the 21st inst. This document, which was addressed
to all whom 1t may concern and not to any one In
particular, merely
Announces THE SUSPENSION
Of the execution OF the sentence OF the Court from
the 18th OF March to the 2st inst, on which date it
shall proceed unless further orders should be re-
ceived from him (the Governor) to the contrary
After carefully examining this document Mr.
Allen went before Judges Davis, lngraham and
Barrett, in their private room, AMI stated that he
did not wish to make any formal melton for a writ
OF prohibition 10 open Court If 1t would be use
too terrible to warrant him In making any public
motion at such 1uncture, and he wished to give
WV PRIVATE CONSULTATION
and ascertain from them beforehand what course
they would take should the motion be made. lie
then submitted his reasons for making the app
cation, which. subsequently stated to a HERALD
reporter, were substantially as follows-
Brennan by Governor Dix on the 9Th Of March last
was informal and not an order oil execution Tor two
FTrst-That 1t commenced with the phrase,
'The people OF the State OF New York, to all whom
1t may concern" instead Of the usual phrase in
OF New York. which was. counsel contended,
"A MANIFEST ERROR" 1,
and contrary to all precedent.
SecOnd-rhat the whole order should have
named the time and place OF execution, according
to section 10 OF an act, in crimes punishable with
death, OF the Revised Statutes OF the state OF New
York Banks Brothers. nfth edition, volume
81, which implies that 1t Is absolutely necessary
THE TIME AND THE PLACE
OF the execution when respite has been granted
by the Sherif for insanity, or by himself for any
Il nft.nI IAffh a VU,t
says:-
Whenever any convict shall be sentenced to the pun
Of dss The OF ms part Of
sign and deliver the sherf OF the county warrant
day upon which sentence shall be executed
Counsel concluded that the document in the
hands OF the Sheriff was not warrant authorizing
Sheriff Brennan to proceed with the execution to-
day In the sense Of the above statute. 1t was, he
AN ORDER FOR RESPITE,
but not an order naming time and place Of execu.
ton; Section l %, page SIy OF the Revised
second was taen ss
lays down that when the execution OF a sentence,
In which the penalty is death, Is delayed for any
District Attorney, or any aflcer BY his authority,
shall have the power Of bringing the prisoner into
after the examination OF the facts have him re-
sentenced
A HERALD reporter had conversation with Mr.
Allen, In which he explained what he meant to
DO In case the Judges indicated that they would
accede to his motion for writ OF prohibition
should 1t be made. 1t was his intention 10 move
yesterday afternoon that Foster be again brought
int0 the Supreme Court, General Term, and have
him resentenced.
REPoRrER--would that proceeding involve ad-
dit0nal delay ?
Mr.. ALLEN-Certainly. The Revised Statutes
quoted expressly provide that an interval or not
less than four weeks and not more than eight
intervene between the delivery OF the sentence
by the Court and It's execution. Judge lngraham
actually suggested that, as there seemed TO be
SOME GRAVE DOUBT
about the matter, Foster be brought up 10 the Su-
preme Court, where they could hold General Torn
and resentefce him to death tomorrow. II they
should de tins, However had stronger motion
than ever to make
After several hours elaboration and after the
most careful consideration OF the matter the
Judges sent for Mr.. Allen and informed him that If
q motion Tor prohibition OF sentence by sheriff
Brennan were made in open court 1t would be de-
MED on the grounds laid before them by Mr.. Allen
a