New-York tribune., 1873-02-17
THE COURTS.
STOKES NOT WITHOUT HOPE.

STOKES NOT WITHOUT HOPE.
JUDGE DAVIS GRANTS STAY OF PROCEEDINGS
-EXCEPTION TAKEN TO JUDGE BOARDMANS
CHARGE THAT THE KILLING IMPLIED MALICE
Close upon the heels of Judge BOardmans
adverse decision the good news 20 the unhappy
Stokes that Judge Davis had granted stay Of execution
until the case can be argued before the General Term
which will be held In March II is said that Stokes re-
eeiyed the news with expression of great excitement
but this feeling passed away Instantly ana ne resumed
at once his careless, composed manner The decision
was announced at y. m. on Saturday III the coUVroon
of the Oyer and Terminer which, In ANTICIPATION oil the
event was quite well filed Messrs Iownsend ana DOS
Passos stokess counsel present in his behalf the
people being represented usual, by Mr. Pheps tho
DistrlctAttorney Judge Dayss opinion Will DO found
below, very nearly in full:
It was suggested by the respective counsel Wnen ns
motion wasisubmitted that its consideration should De
deayed I'M the decsion OF the motion for new trial
then pending before Justice B0ardman. luat no',ou %
having been decided adversely TO tho prisoner it be
exclude from consideration the amdhEts ussu s,.n @
motion for the new trial and all the qnGsohs hrlsis
upon them. They are not in my opinion, PsopeldH Iads
before have not considered the questions maui
by the exceptions taken upon the ptenlharg It"' 81 "a
the pleas In Abatement. put cOnIne hysen Gu,
rey to those which appear In the Ol, OF ehcePe,qns
made upon the trial Of the indictment The application
TO me is for writ OF TO bring the judgment TecOf1
and the bill Of exceptions before the GeheTal dei w
the Supreme Court for review. Judgment haVnE Deen
pronounced in the case other mode OF review 10 oPu
TO the prisoner and 1t s apparent that 70 grant tne VITA
without express order staying MS execution w wOud
be idle and cruel ceremony Ihe RUE "Hivh td
govern the judges IN determlplng noIon Ol s ,td
has long been clearly settled. several cases flVg
And in the very late case Of Foster ag The People me
Court OF Appeals. while unanimously Affirming tne
conviction % not hesitate 70 say that the case was one
eminenty ut TO be reviewed and which properly called
for tho allowance OF the writ and stays OF ehecupn %
rlI6 deducble from these cases Is briefly this that
whenever the judge to whom sueh an apPnCaupIHi Iib
made I'm a capital case, considers the questions Hhcn
have been raised upon the trial, and which may have
affected the result adversely to the prisoner 70 % 2e GI
such grave and serious doubt, either from tneI
not having been settled by the higher courts or because
OF conflicting authorities touching them, tna IA d1h o
Judgment, they are worthy OF the solemn m S 6el,o
creation appellate tribunal Is his duty TO accord
to the prisoner the opportunity to present m fhe lOp in
view; and in such case the duty shoud pe % ~
view Of the rremediable consequences that may I9pm
his refusal The exceptions taken upon tne t or enS
TO either frivolous Of such slight Importance that
they cannot be regarded having preudiced tho pr
Oner. But in my opinion they are not all OF that
description Some OF the exceptions 10 the fuLnBs VI
receiving and excluding evidence VIII, tnlhh, deserve
attentive consideration upon argument cannoI nStg
consider them in detail. The exception upon Wmcn
have the grayest doubts arises upon portion Oh tne
charge. The learned Judge, in the course OF charge
which il model Of cearness and general cOrrecJhess
laid down. to the jury the following rule OF law
The sst o. The t1g sai case osSt @ t s Sot murder
S9 sc S S d % dSs % % %D9 TGT from e 5 he Hg uHd the
stances in the absence Of eIpansoD mat II vas ar ~ % ~
killing beng conceded and the law implying malice from the cream
and Therefore you can have no rel,onabe unless the
prisoner shall give evidence sufficient to satisfy you that was usahAos
THIS was perhaps and correct exposition OF the
comnonaw rule IN case OF homicide Dy yloience, anu
doubts under the statute OF tins state defining
murder IN its several degees The indictment for
murder in the degree The Court aud the counsel
both sides concurred that the oense was e6er muir
der in the first degree manslaghter in the third de-
gree or unsuitable homicide The killing by fatal shot
from pistol nred by the prisoner was conceded, and
understand the charge TO have been in substance mat
from this conceded and the circumstances attending
tbe Drosecntion fny and entirely" unless the pris-
oner gave evidence sufficient to satisfy the jury that the
Wilson against fhe People a Parker G9) Judge Wright,
an eminent and able juIist, in reviewing at General
Term similar charge, says
eIpoe the whole common law doctrine
voul have been pra aae MURDER or lice would
have been implied from ee act e and the lora pOY 70 APn pam
upon But under statute another ingredient was
the uactoS the blow to m It is true the jury would liberty
ns ,hs Intention ~ Pro,s c NON & G 's 20 % tnd bt
ordinary be the result bis acts but
throw upon epng the Of The
rsnsscioa reducing the o1ensc 10 mlnsaashter.
TO the same effect the charge OF Judge Edmunds
in the OF The People agt. Austin, Il Parker, l6D
and The People agt White, GA Wend 52O0 the repor-
the conclusion that express malice must be proved
the prisoner cannot be convicted under an indictment
charging premedated design to effect death. Under
standing the charge OF the learned Judge to have de
clared legal proposition that the law implies the
case that charges the indictment fully and
entirely made out unless the prisoner proved by eyi-
dcncc sufficient the that his act less
crime, crme cannot but feel, in the light or the
referred to- at there are such grave doubts both
as to the correctness the charge ana its probable effect
upon the deliberations of the jury, TO bring this appi
cation within tue far scope OF the rule that should
proper that should form express any positive Opn
ious upon these questions 1t is enough tnat cannot
say that my mind is free grave and painful doubts
reach my conclusion in this with regret but having
reached H. shall perform the duty that springs from 1t
The writ OF error is allowed with stay of the execution
OF the sentence until the decision OF the General Ierm