New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1874-06-27
THE ARGUMENTS AND SENTENCE.

AFTER H. .RoRATE ARGUMENT on BOTH SIDES
TIE COMMISSIONERS FINED $50 EAcH-NoTIcE
OF THE CAUSE OF CONVICTION GIVEN TO THE
GOVERNOR.
An eager but an orderly crowd waited for
half an yesterday morning in the han OF the new
house. adjoining the Supreme Court, for the open
ing OF the Court Of oyer aud Terniner where 1t was
| expected that the sentences OF Police Commits
soners Hugh Gardner and Oliver Chsrick would
be pronounced. When tho hour arrived all
marched in to the admonitory refrain OF go 1t
easy now, gentiemenp and "Hold up on that
rush little there" by the jealous Court officers out
side The room flied In two minutes, and
here were again the greater ana lesser lights
OF Tammany Hall. Among the prominent people in the
room were Assistant trptAttorney Allen, WIN. p.
Richardson, once active member OF the old Repub-
can General Committee at the time Mr. Greeley was Its
President John Kelly Gen. Sdnola, Samuel g. Court
ney and counsel for the people and defendants AS
sstant Attorney Fdirchiid Col John r. Fellows,
aud Geo. W. wingate on one side, and exMayor Hall,
exJudge Fullerton and John l. Davenport on the other
Mr. Charick was again absent, and Mr. Gardner alone
appeared to undergo the ordeal Of sentence
At the outset ex Mayor Hall moved for arrest OF
Judgment upon the ground that there could be no
Judgment because the defendants had been convicted
of felony by the terms OF the verdict OF guilty; while
Mr. Fullerton followed with the presentation OF the
second question-whether this Indictment against the
Commissioners was good, having been found under the
seth section OF the Revised Statutes In connection with
the 18th section OF the act OF 1872.
A. Oakley HALLS ARGUMENT.
Mr. Hall on the former point argued IN this The
grapamen the charge at the outset was that we did
unawfuly and feoniously remove Mr. Sheridan with
out notice in writing; and at the termination
of the indictment 1T comes again - that
in manner and form aforesaid they did
unlawiuy and feioniously do an act prohibited by
law" Tue consequence is this motion being on record,
twenty years hence Mr. Charlck and Mr. Gardner con-
yiced under this indictment, convicted, according
TO the record of felony and by the laws OF this State
are subject variety Of disabilities; and however my
learned friends might consider 1t to-day, yet record
hves and hence the necessity for considering motion
IN arrest ud gment upon grave subject as this III
will therefore be perceived by our learned friends Oh the
other sde particularly when read this case that this Is
not matter subterfuge, but quite the contrary II
is the case Of Black against the State of Maryland "a
Maryland Reports, page 800. Toe motion was In ar
rest of Judgment first because the indictment charged
the act had been done feoDousy and the act charged
was felony That Is my position III thls case IL
was argued judges and the counsel for the
plaintiff in in his points says II iDsdemeanor
should indicted felony, or vice versa, the indct
ment Is tbad Commonwealth against MacomDer,
Mass, 2OI and also Mass.
Neither by tho common law nor the act OF ths Stae
IA the act SET up felony, and IT, OF course Is clear
from the course Of the examination that 1t ddnt enter
stood either under the law or the statute, as
a felony The Court goes to Say "By the common
law every person convicted OF an infamoul crime and
any said To be done feoniousy ana expressly or I'm
pledy charged by the conviction and verdict TO be
feoniou5 is disqualified as Witness and then 1t goes
on to state a variety of dsqualhcauons peculiar to
MARYLAND, but mainly illustrative of those per
tanning 10 this State The Court says the
person has been convicted OF felony when tho
,Gense against him was not OF that character,
and it was admitted on the argument here, as VIII be
seen by that the burning or the stack OF hay
1.-THE act commited was not felony, either under the
common law or the State statutes and nasmuch the
convicted him the record OF the feonious
and wlful burning othe hay, convicted here
with that word in the indictment OF fel0Di0usly and
wickedy doing this act, are convicted in the very
language Of the COurt here, when the oHenso proved
against u.s. according TO the legal definition, was not
of that character Aud say the Court "We are there
fore of opinion that according to the principles OF law
pleading In criminal 10 valid judgment could be
pronounced on such indictment and verdict as existed
in this case and therefore We reverse the Judgment OF
the County Court"
This il decision which is on afours, as the ordinary
professional phrase is, with the facts and position in
this case Whatever be the understandings there
can be no understanding OF record beyond the record
itself and 1t will be said by posterity that We have
been on the face Of an Indictment convicted, by a
verdict of something wit doing act which is
either felony at oompQp law nor felony under the
statute.
MR.. FUILERTONs ARGUMENT.
Mr. Fullerton followed his associate with statement
Of his particular point BY this 18th section OF the
of 1872 the removal Of inspector Of election without
notice is prohibited. Now Nov. 3, 1873, the defend
ants did remove an inspector without notice, and,
as the jury found have done prohibited act and
as they say exposed themselves to some kind Of punish
ment. section 80. chapter /, Part T. title Revised
Statutes ced Now the Attorney General claims that
this indictment well drawn. because It Is founded on
these statutes Now IL be true, In point OF fact
the OF prohibited the law of 1874
then this Ssth section Will apply and it is equally
the law OF 1872 providing for punishment for that pro-
ted act. Section 80 does not apply. Let
your Honors attention particularly 10 IT. The
curry Is whether there Is other statute providing
the punishment of this prohibited act. l refer you to
the first volume OF the NewYork Statutes at Large
page las, to show that long prior TO pas
OF the act OF 1872 the OF this state had
consequently the Section ~ upon which the indictment
This Is broad and comprehensive IL does not refer to
duty eDjoned In this chapter VI the Revised Statutes
existed but 1t Is 50 broad That it reaches out
braces any future statute which may be passed by the
Legislature the subject. Now IN 1872 the Legislature
did pass statute relating 10 eecons the Legislature
did provide that the Police Commissioners should APP
point inspectors OF election and should discharge va
rety OF duties regard to election. that they
not only possessed the appointing power but the
of removal Therefore, 1t statute relating to cleo
tons, and punishment providing FOR the violation OF
the statute relation TO elections and the peader in this
should have founded his Indictment upon the
of 1872 and this section page 49, VI the Revised Statutes
which have jnst quoted and the language Of
that section should have been adopted and moor
pOrated In the Indictment | repeat this section 49,
quoted rerbahM Ia the indictment, has no to do
with the ocDse provided for BY the 18th section Of the
act OF 1872 than with any other 0ense created
Revised Statutes This statute providing for punish
nent for thls prohibited act has been entirely
looked by the pleader IN forming this Indictment.
ANSWERS TO THE OBJECTIONS.
Col Fellows-The first objection arises on the motion
n 81 for the reason that the Indictment charges