The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-01-23
LETTING WE'LL ENOUGH ALONE.


the first degree, In setting fire, during the night
time, to the residence OF Henry Shelting He was
sentenced to one years Imprisonment and to pay
a fine Of $780, An appeal was taken from this
Judgment to the Supreme Court, General Term,
where the case came up Tor argument yesterday
morning, Judges Davis, Daniels and Brady on the
bench. The result was as novel as 1t was unex-
pected. The question that came up for argument
was simply whether 10 the present condition OF
our statutes there Is any such offence as an at
tempt to commit arson in the f1rst degree pun
ishabe bv our laws. Mr.. VIM. f. Howe appeared
for the appellant and District Attorney Phelps In
opposition.
penalties attaching t. arson, the origina, penalty
in the revised statutes being DEATH then by an
1or lie and then in 1862 the punishment being
again changed to imprisonment Tor not less than
ten years, and this again by an act OF NAV, 1873,
being once. more changed to Imprisonment for
lie. Next he showed how the statues re-
garded ATTEMPTS to commit arson. That the
Legislature intended that one OF thu most serious
crimes known to the law should be committed
with utter lmpunltv or nearly 80, was not to be
ployed plainly and unmlstakably demands that in
depreciation. palpable failure OF justice was, OF
the plain inIehdment OF its language, out it is
surely an argument which courts may heed where
the construction is doubtful. A. lar as ne had
been able to discover alter careful investigation
neither the precise question presented 10 the
Court, nor one very similar to IL, mad ever been
doctrines oil the law IN relation to reports by i'm
p'cation he saw no ground ior reversal OF the
Judgment
Mr. Howe said that the plaintiff In error waR la
dcted for arson la the first degree the punish
for lie G and no less Tne Conviction was or IAN
attempt to commit arson IN the first degree" for
which there is now no punishment on the statute
offence OF which tie prisoner was convicted was
clearly a felony. sentenced him to one years I'm.
the statutes in reference to arson and showing
that by tn. Of 1873 the penalty for arson In the
nrst degree Is imprisonment Tor lie In state
Prison, 4" and that the conviction Of an attempt
to commit any crime carries with u penalty
mot exceeding one hall the longest term OF I'M
prisonment prescribed urOn conviction Tor the
offence so attempted" he went on to say that the
term OF Imprisonment Tor arson. arst degree. Is
life. What IS half q lifetime Can courts or
Legislatures foreteil the duraton Of human lfes
Can finite man determine or measure out "hai
tence OF one year is not in excess Of naf iiie
timer 1--WE know not the day or the hour OF our
teIce OF fve years or five days or i've hours may
be in excess OF ''hal lifetime" The LeRisla-
to commit nIn arson in the first degree" Therefore
Judge Sutheriand's sentence was erroneous and
the prisoner should be discharged because no pun.
ishInent De legally indicted Tor the offence OF
which the plaintiff in error was found guilty.
Judge Davis said that It was a grave question In
his mind whether, as the lew stands to-day by
reason OF the act OF 1873, the appellant was not
liable to imprisonment in State Prison jor five
course the Court at present would express no de.
cided opinion upon the cons truction to be given
s nsa to Se brct
and the case having been fully presented, and
being very peculiar one, showing the evils OF
has,y legislation, 1t ought 10 receive due atten-
Mr.. Howe said that, with great Difference after
| what had iallen from the lips OF the Court, he
| should respectfully ask that the appeal be with.
drawn.
withdrawn. but the Judgment OF the Court below
can be affirmed.
| has been so universally kind to me, now ask
that this Court af1rm the Judgment OF the Court
below. (Laughter.)
take this case to the Court Of appeals.
Judge Davis pleasantly You cannot sue out q
writ o. error for Judgment IN your own favor.
Mr.. Phelps-This Is the first case in which the
paIntIf in error has asked Tor affirmation OF judg.
aG tss .
Judgment
An important decision was rendered yesterday
by Judge Van Brunt in the special term OF the
Supreme Court in an action to cancel contract.
1t appears that q contract was entered into be.
tween Seitz, the plaintiff IN this action, and the
defendant Smithson, by which Seitz agreed to
deliver to Smths0n large lumber OF engravings
OF 'Lady Wasnington's Reception" and as an
indemnity and guarantee to Smithson for the per-
iormance OF Ssitz's part OF the contract 1t was
stipulated tndL Jne pldLe IRON WHICH tue euGTAV-
ings were TO be MADE should be held by one Cor
don as trustee, the plato being already In Cor
don's possession and pledged TO him Dy SeIiz as
security Tor an existing indebtedness. Smithson
the contract nevertheless Obtained from
time to time from the trustee, who was
also the manager for both parties under
the contract, gu ntity oil the engravlngs, for
which he paid on delivery about 81, 400 He had also
made The first and third payments due under the
contract, amounting to 5000, but IalIng to make
. payment OF $4,000 In the manner provided by
the con ract the supply OF engravings on the part
or Seitz ceased. Seltz now desiring to discharge
his Indebtedness to Gordon and obtain possession
OF the plate he had pledged rendered the amount
due Gordon, VINO reused TO sure nder the prop
erty until the contract was cancelled alleging
that Smthson mad notified hin that ne would hold
him responsible II ne did. This suit was accord
ingly brought TO cancel the contract and release
Gordon IRON his trust so that he might surrender
the property pledged TO him on payment OF his
claim. The contract contained a clause providing
Tor Arbitration IN case OF dispute between the par
ties. The defence admitted all the facts, but
claimea that the $4,000 paid by defendant 10
palntin should be refunded or It's value In engray-
inRs furnished 10 Smlths0n as condition for the
cancellation OF the contract motion 70 dis
miss thu complaint made ground and