The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-06-27
CHARLICK And GARDNER.
Motion for a Suspension of Judg-
ment Denied.
Argument Of COunsel-WaS IL Felony OF
MisdemeanOr!
Sentence OF the COurt-The Conn
missiOners Fined.

case OF The People vs. Police commissioners Char-
hex and Gardner, In the Court OF oyer and Ter
miner Thursday evening and the desire to hear
the argument OF counsel for stay OF Judgment
and the decision OF the Court thereon, drew an
immense crowd in and about the court House yes
terday The case seemed all at once to have as
sumed prominence and public interest which it
had in all its previous stages lacked, when John
Kelly the peoples tribune for the occasion,
pressed the proceedings single handed and alone
up to the point that brought the two Commission
ers lace face with the stern realities OF the law
they were charged with violating. All previous
apathy dissolved in the presence OF the new
revelation that the autocratic Board OF Po-
lice Commissioners were amenable, like other
men, Tor a violation OF law which in
their sacred persons seemed TO oe no offence or,
n 1t was that they at al events were above the
penalties attaching TO such. The successful pros
ecution OF Charck and Gardner Tor violating the
sacred rights OF the citizens in the exercise of the
elective franchise will give new impulse and a
right direction TO the efforts OF the people TO
cure good government III the future. This IN fact,
was evidenced IN the interest manifested yester
day to learn the decision OF the Court as TO the
dilatory motions that were anticipated TO be made
for a stay OF Judgment ana the ruling OF the Court
thereon and the final sentence, should
the Court override these motions. The Court
had not much discretion in the matter OF the time
within which it should pass sentence, the statute
requiring that sentence should be delivered within
ten days from the date of conviction. Judge
Brady properly remarked that argument OF coun-
sci could not be heard within that time, and that
therefore the present was, perhaps, the right time
TO sentence the defendants An unusual quiet
prevailed amid the crowd which filed the court
room from tue doors to the bar and inside up 60
the bench while counsel on either side pressed
their views upon the attention OF the Court and
not single demonstration or expression of feel
ing was made or exhibited when at last the SEN
tence pronounced.
Commissioner Gardner was present but his
fellow Commissioner, Charlick, was conspicuous by
his absence, Mr.. Charllck, 1t being understood,
beng seriously indisposed and confined to his
home. The stawart form OF John Kelly, who has
80 successfully fought the peoples fight on this
contest for the purity OF the ballot box, occupied
his modest seat among the spectators apparently
the most disnterested OF that anxious crowd, al
though the peoples triumph IS in TINS case really
his he having been the moving splrlt-the Banquo
Of the schemes OF Gardner ana Charlick, who APP
peared in the oyer and Terminer aud retributively
deprived them OF their ''stoolsn or seats at the
Ponce Board Tor their violation OF the law OF eIec-
tion.
OPENING ARGUMENT
Mr.. Hail. in opening the argument asked that
the counsel be allowed 10 argue different points.
The request was granted
HIS first point in arrest OF Judgment was that the
Indictment charged felony, repeating again ana
again the word .'feonlously''-that is TO say,
with wicked intent The prosecution might have,
but had not. The record therefore, stood that
they were convicted OF felony, involving many
disabilities not attaching TO a mlsdemeanor. and
the charge against the defendants was only mis-
demeanor. He cited "a Maryland case, where, on
similar motion, such variance was held fatal.
Whatever might be the understanding now, pos
terity. which looked at records, not understand
ings, would md that the defendants were guilty
Of felony.
Mr. Fullerton argued that the offence was the re.
moving OF an inspector without notice on the Sd
oil November, when the Court had charged was a
prohibited act They indicted under the Sec
tion OF the Revised statutes which provided that
the dong OF prohibited act where no other PEN
atty was imposed by any other statute, should be
misdemeauor. 1t beng assumed that this was
prohibited act It was necessary to inquire whether
some statute did not provide specially Tor the pun
ishment. He referred the Court to section of
page liz OF the Revised Statutes, which provides
for the punishment OF omissions OF duty under any
election law and claimed that this provided
punishment for the offence and, there fore, the
general section did not apply. The Indictment
was, therefore, void, as being under the wrong
statute.
when Justice Brady informed him he need not
argue that point.
Mr. Fellows then proceeded to argue Mr.. Fuller
tons objections. he directed tue Courts attention
to the that the law OF 1872 was long posterior
TO the provision OF the Revised Statutes, and that
this general act was the only one which could
reach the Police Commissioners. The other act
only reached inspectors or inferior orlcers. They
had not indicted them Tor a wfu neglect or cor
H. Pusrton D sad n 6e 1 o 5s Would
Close s Este t6ahsS had IA pressed the other
ground and the Court had main MANNED him in IL,
that this was wLul neglect. The defendants
could have been more easily convicted on yester-
days testimony oil neglect than OF an act.
Justice Brady SAID that as to the use Of the word
''feloniouslyr there were two answers, the course
OF TRIAL the charge OF the Judge and the statement
OF the Attorney General that IL a INSIDE
meanor, which together were equivalent to a With
drawal OF the word "ielonously;'' the second
answer was that the word 'ielonlously" was
always considered surplusage in this State.
As to the other point, there was no punishment
Revised statutes applied to wilful neglect or cor
rupt conduct, and did not apply to this case. The
motion was, therefore, denied.
Mr.. Hall here asked, as matter OF substance
that the verdict be entered as guilty OF mlsde-
meanorn
be entered was Guilty OF the misdemeanor
charged in the Indictment"
under the statute permitting stay for the pur-
pose OF an appeal.
Judge Brady called his attention to the act re-
curing that judgment IN election cases should not
be stayed Tor more than ten days
Mr.. Hall argued that the Old statute being re-
medal could not be repealed by implication, and
there was nothing directly repeating IL Tor these
cases Another Interpretation coud be gwen to
IT, That 1t was intended to prevent, what was often
done in other cases. the general suspension OF SEN
tence and not TO interfere with the orderly course
OF appeal
MI Faircnild replied calling attention to the
fact that this law was intended to give swift justice
In these election cases. This offence was COM
United nearly year ago, and II was only now that
they were asking Tor sentence on them after q
trial in which the defence was ignorance of the
law. In an English case he had recently read the
Coroner who mad offended was said to have been
-prooably weak and silly man, but weak and
silly should not lntrude themselves into public
Office" Ignorance OF the law coulo not excuse
any man, and no ignorant man should lntrude
himself INTO ONCE.
MI Hall replied IL was the first time he had ever
heard a representative Of the state attack men
after CONVICTION He argued that as there was a
meeting Of the General Term next week-wlthin
zen uays--thls course could do no harm.
mT. feHOWS spoke at great length, dWelHnR on
the Importance OF the offence and defending him
sell from having done anything except what MS
duty 10 me people required.
Judge brady said the only thing the Cont could
recognize was the statute and the facts.
THE SENTENCE.
Judge Brady then delivered sentence, as lol-
lows
My views OF the laws Of 1872 render Il incumbent
npOn me to pronounce sentence within ten days
There IS not the s2htest nope that tins be
heard on appeal Ia ten days, but inasmuch as /
contemplate the delivering OF the sentence VIII
not interfere WITH the liberty Of the aelendanLs