The New York herald., 1875-07-16

$40 penalties or ESQ each for as many dinerent
onences OF the same hind. tsecona sweeneyIs
OF Appeals and the entire Judgment was there
reversed on the merits, without anI references TO
numerous delinquencies az once and subjected 10
numerous penalties In the same acuoh: Judge
defendant and OF course. he took no part in the
upper Court. Il never has been and is not now a,I
suggested on any hand thaF, as IL respects thIs
pcfnt Of joining several offences and punishments
In one trial and Judgment, there Is any dlnerence
cipe there is none; all the authorities plainly
show IT, and II Is on that account alone that my
any relevancy TO its decision.
Although II turned out not 20 be necessary 10 an
actual decision in the Johnson case or. perhaps,
In any other, the point was relevant In many suits
then pending on appeal, and 1t is presumaolc that
this very arguuent was urged upon the Court oy
other counsel In these other cases. however
this may De. the appeal judges, MS We shall see,
considered II ana dnally disposed OF II. ON De-
under advisement, Fisher VS.. The New YORK Gen.
trail and Hudson River Railroad Company (4o New
Judge Grover IN aeIyeTina the .ulnion OF the
Court, spoke as foil Jws:-
This ma.es it unnecessary e detsrmne whether Il
Se IN one e oc.o or whether separate
the case with The s%Os that o
what was the early CON d rule, or how the ques
sgs ne qs II & has Sssn TOO Long cons dsrsd l. settled and
court" - ''' ~"' N''"' 'V1' - - '"''
or course Judge Rapallo declined to vote, and
he stated the reason. We have seen that he was
'lnterested IN the question as counsel" This very
declinature emlneniy proper as 1t was, lends
10rce and point TO TINS statement, II either was
needed. 1t SHOWS how distinctly the question was
brought under the notice and consIdoratisn OF
the Court. Cnief Judge Churcn ana Judges Allen
and Foger are expressly named as concurring
with Judge Grover. Thus, Tor the guidance OF
counsel prosecutors and inferior courts, The rule
permitting the inniciion OF numerous punIsh-
ments for delInquencv. through one trial and
laa.nens % was a,cl,re ,n 10 Se psreG,y essap nart
Tae volume Of state Reports announcing
tnat the objection had thus received lis qulet tus
was published on May 20, 1872. scarcely eighteen
monihs mad elapsed alter that date when on
Tweeds trial. you applied the "rule" thus pre-
scrlbed to you. Had any one then read to you my
brief In Johnson's case as persuasive evidence or
nav mas1 4ssrrs oe you
have added, 'If that argument cannot BE- an
swered i can be oyerruied. the Deliberate
1t. Whatever might think OF its LEGALITY the rule
laid down BY that Court controls me, and must
Gently proclaimed you might have Deen pro-
nCunced inexcusably ignorant OF w. or justly CEN
sured for insub0rdtnatiODs
whether a doctrine so recently and 50 emphati-
caly repudlated should have been at oace ap-
the prison doors and exempt a peculator from
penalties, the Appeal Judges may answer as they
best Can. IL Is not the question propounded to
me. The dates Snow that my argument, however
irrefragaDle, was bsfore the Court and was re-
pudiated by IL when Fishers case was decided.
OF course did not believe when Tweed was tried
that you could have treated That argument as
valid You ask whether supposed that the
Court OF oyer and Terminer was exceeding It's
Jurisdiction when you proceeded to impose the
cumulative sentences. The above reclted utter
ance OF iis views by the Court OF Appeals In oecid-
ing Fishers case forbade my regarding that act
even an irregularity ror. The notion that
lt was an excess ofJurlsdictlon Rever foundplace
In my nina even 1Or an lastant. rnere does not
&c I'm to be any color Tor it. Had the Court Of APP
peals entertained thts point anew upon writ Of
ArT hrAu n hu Tea ana Tstlv slatH
eriRg It's former col ohclusion, reversed ~ at least
might have been well satisfied. Doubtless would
justice could not have suffered any material
prejudice, nor would crime nave been furnished
have BEEN new trial conc Soauoses N cosiorHisy
with the altered views, more enlightened tnan
thos. expressed In Flsaers case, which fuller re-
1cctton or aDlcr arguments had generated IN
the minds OF the Appeal Judges. But by
changing their opinion, and carrying the point TO
denial Of Jurisdiction, they have let In great
practical mischleis. some OF these have been
already noticed; practically the most serious Is
the complete deIiyerance OF the culprit from any
punishment TOR nfty crimes OF winch jury has
pronounced him guilty: The Judgment STANDS un-
reversed ana n nii norce though en- the penalties
nifty unpunisned delinquencles he can now plead
Is an onectual bar. his former conviction. The
new lights to De erroneous. affected the
jurisdiction and was, therefore. renewable
great body Of enlightened Jursfs whose scrutlay
ia Importance Will naturally invite. They Will
consistency nor any consistency except tnay which
may be discernable In It's sl1itude to the TWO
lormer judgments OF the same tribunal In ine
civil cases. II IL be rue as alleged by the delln-
quent's party. that all those who constituted the
minority IN the former cases nave joined tnem-
selves unto the other four, so that unanimity
reigns within the Court, the fact is TO be regret
ted. 1t presents exigency which should De
met. Immunity In seeking q remedy should pre-
vail. Neither the pecunlary interests OF our citI-
zens the honor OF our State can De deemed
sale as matters stand. But now have an Ex-
ecutive opposed to peculation and In November
an entirely new Legislature Is co be elected,
What Is yet unstolen In the hands Of the people
may be preserved to them l. they will act promptly
and employ for their own rescue the means watcn
en-. O'CoNOR.