The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-02-04


men. who were astonished he should having 80
strongly shown that he had prejudged the case,
have got on the Jury ms @ shas him
After he was summoned on the jury he said that ne
would hang Stokes quicker than hghtning, and
this could not be received as jest by the Court
II was his duty to say to the Court that he had
pressed his opinion as to be unfit for Juror AS to
Mrs. Watts statement that Yost said that hanging
was too good for Stokes he did not deny it directly.
He said merely that he did not know Mrs. Watts,
and didn't believe he had said anything Of the kind:
Mr.. Tremain here interrupted, saying that he had
just discovered that when Mrs. Watts was seeking
certificate to obtain credit for her rent Mr. Y0st
He asked leave to introduce an afiidavit Of that
fact
done without consent OF the ether side.
Counsel continuing said-Mr. Bechsten did not
deny the allegation that he used similar express
sions positively but that he did not believe he had
ssed them That the expression of such opinions
unified him for the trial of the case needed hardly
any argument. 1t was not merely an opinion OF
the quit or innocence OF the prisoner; 1t was
liked conclusion, "Stokes ought to be hanged"
He submitted that under the new act these
heved and testified they could try on the evidence
solely but when 1t appeared that in that their ties.
tlmony was wrong, that their expressions showed
such conviction that under the conditions OF hu-
man nature they could not disregard 1t, the Court
would interfere. This was not technical matter,
cisions Of the United States Courts, in which the
rule Is somewhat similar to the rule under the new
statute. The English cases cited snow that the eX-
preston of an opinion, and especially OF such
opinions as ascribed to Manchester Yost and Bech-
stein, was regarded as much stronger evidence
ton OF an opinion revealed by jurors
own statement. He quoted both American and
English law to show that the prisoner was entitled
to unbiased jurors Counsel then read the statute
Of 1870. and claimed that it violated the United
States constitution, which provided for an i'm
crime. This has not been re-enaeted in this State
In terms, but our State constitution provided that
the g OF by % II 81
main inviolate forever. He argued tnat the law
was in opposition to the clause In either consttu-
prejudiced," &c.. but claimed that it was
The meaning Of the g word was Illustrated in the
case of Virgins against The People, where the
Court decided that man who had made a repeated
party and whom, had the defendant known Of his
expressions, he would never have accepted as
Juror, was not impartial. The State constitution
also provided that no one should be deprived OF
life, liberty or property except by due process OF
and that the Legislature could not interfere with
any Of the common law rights of a prisoner as to
the jurors any more than they could enact that a
that an injured mans brother might be placed on
q jury. With regard to the Juror Bowes he had
made certain examination andehe e, communicated 11
Then, again, there was no denial OF the fact that
Bewles, In violation OF the direction of the Court
had read newspaper reports OF The testimony in
the case.
Mr.. Beach said there was no proof that the Court
had made such an order
Mr.. Justice Boardman said he had recommended
to the jury not to read anything in the newspapers
in reference to the case.
Mr.. Dos Pass0s claimed that the jury were bound
to follow such recommendation, end cited cases to
show that the judgment should be reversed because
of their neglect. He cited Eastwood against the
People e Parker 25), Where a new trial was
granted because one-han the jury, in the absence
OF the other half went to the place OF the ARRAY
and viewed it without the consent Of the Court or
counsel. In that case the jury were merely
out for recreation. and 1t was not pretended
that the visit to the scene OF the homi-
eide had any influence on the jury, and
the Court would not inquire upon that point
in setting aside the verdict for such irreguarity
He quoted decisions the same general bearing III
other States, in which the Court refused to con-
slder the testimony as binding. He commended that
for all the purposes Of a fair and constitutional
trial the prisoner was not present when the YER
dict was given, and that he was, not present when
the jury received supplemental instructions.
Under these decisions II was no answer that the
prisoner was not prejudiced, or formal, or techni-
CAL But who could say that he was not preju-
diced2 Who could say that he could not have sug.
gested questions which escaped the notice of his
cOunselY This right could not be waived by the
prisoners counsel. That had been held where
there had been formal waiver by counsel, and
there were cases where it had been decided the
prisoner could not himself waive it. With regard
to the
JUDGES ABSENCE
during the summing up of Mr.. Beach, the law babe
prisoner to exact all the requirements of the
law He referred to the case OF the People vs.
White which denied that the presence OF a Quorum
OF the judges in Oyer and Terminer was all that
was needed. But the Court would see that the
could be complete without any Judge.
Mr.. Dos Passos closed his argument oil ten
minutes TO four O'Clock when the Court adjourned
till this morning.