The New York herald., 1876-03-19
AWrit Of Error and Stay Of Execution Granted
in tn. Case Of RubenStein.
THE OPINION OF JUDGE BRADY
Important Decision for Sail
ing Masters.
Liability Of Holders Of Usurious
Notes.

sentenced TO be hanged Friday next has been given
an opportunity TO substant!ate what he has claimed
from the outset, his innocence OF the terrible crime
with which ho is charged writ OF and stay OF
execution has been granted by Judge BRADY, OF the
Supreme Court the effect OF VIII ch will doubtless be
the carrying of the to the Court OF Appeals for
nna adjudication. There have been few more remark
able trials in this country, and in which the gult or
Innocence OF the accused is determined by in.
the moment OF the termination of the trial, which
lasted two weeks and ended on the 18th OF Febru-
Rry last, his counsel Mossrs William A. Beach, John
o. Mott and William F. Knitting have been indeiatga-
bic in their efforts to nterpose some legal barrier
against the execution Of the dreadful sentence OF the
law passed upon Rubenstcin. The first thing was TO
prepare bill Of EXCEPTIONS which embraced some
LOU pages o closely Wi.tcn Hanuserlpi ts y +,
or this involved immense labor, but within half
hour after its appearance IN type application was
made Judge Pratt for writ or error and stay OF ex
ecuton. Technically, as IS well known bill OF ex-
cepOns be settled by the Court and filed before
writ OF error Is taken out as writ OF error means
nothing except what Is on alo the time of the fling
OF the writ therefore nothing could be done prop
ery and legally until the bill OF exceptions rs filed
Immediately following telegram sent by Judge Pratt
the prisoners counsel thai hc mad refused the app
cation Tor a OF and stay of proceedings the
application renewed before Judge Brady, sue
seeded BY extended argument by respective coun
BEL Judge Brady thinks there is sufficient doubt of
the prisoners guilt TO entite his to 80 TO the
Appellate Court, and he yesterday gave decision TO
lhis effect, embodylng the same in the following opin
OPINION OF JUDGE BRADY.
The defendant was convicted OF murder upon circum
uantial testimony. There no direct evidence
showing that no at the place where the murder
.ommitted The witness for the prosecution who tcs
tilted that no saw him in its vicinity with the unior
tunatc girl who Killed SO shaken upon cross
examination and assacd by evidence on the part Of
hc defendant that his testimony was abandoned by tho
people The chief fact or circumstance against the de-
endant the alleged purchase OF an unfinished to-
Iacco knife, which child twelve years OF age declared
The sold TO him the afternoon &C the 9th Of Deccm-
Der. She acquainted with hlm and had not
him before, and the interview in which the sale
made brief The answer given to the facts ar
rayed against him. not only rs TO the purchase of tho
knife but otherwise, was an alib-that Is, that he
was elsewhere at the time Indicated II conceded
By the counsel for tho defendant that tho
ease made out against their client, unanswered,
District Attorney that the aibi was sustained by
eral witnesses and strong indeed further, that
the defendants witnesses were to be believed, lie
was entitled acquittal These witnesses were not
impcacbed. They were not, nor was either OF them,
nssailed by evidence showing them us unworthy Of be
liei Ii must be apparent that IN such case, any
distinction be drawn In criminal prosecutions IL Is
essential &c the due administration OF justice that there
be no doubt o the rules OF Law upon which The charge
investigated; none about the value OF the cxccp-
lions taken. Although crcumstantial evidence must
pften be resorted TO 10 prove the commission OF
pnence and is sometimes entirely satisfactory, II
aot be regarded as of the same force or convincing
character direct evidence would be, showing the act
aone which Is complained Of When person is accused
indeed the history OF Jurisprudence so demonstrates,
that an abi Is the only answer which he can give,
coupled with the proof OF good character. The de-
iendsnt presented both Of these elements on his de-
lence
The prayer for review should not therefore refused
nnless the exceptions taken beyond doubt vauoess
and his guilt apparent. am not satisfied that this
view can be adopted. Whatever may be the opinion
Of another On the subject such is not my conclusion
aud must act upon my own convictions. This case
Involves life | think the question asked the surgeon
NAV DO neither the prohibited line OF inquiry esiab
Nehc cd by tho ol no Y.
In 80 New York Reports. and that creates a doubt
Of the justice of the convcton In this case there
concession by the Defendants counsel that the
deceased murdered, and In that respect 10 tho
tcicndants benefit this case oilers from the case
nied II may be said, IN addition, that the court OF
resort II this be reviewed by IT, nay be called
IN consider whether rule Of law the jury eau IN
, criminal case, OF purely circumstantial evidence
nth the duty imposed upon Them OF giving the
Iccuscd the benefit OF any reasonable doubt
II his guilt, and when he has given proof OF
rood character, reject the testimony OF numer-
,us and unlmpeached witnesses proving an
lb and thus giving superior and controlling crcdence
md valuo TO inierental lacts alone am not aware
hat this precise question has been presented To our
OF last resort, although kindred questions have
.cen IL must also DC said that where any doubt eN-
sis In a capital OF the iorco OF exceptions pre-
Iented II is comparatively poor boon TO grant the
condemned PERMISSION TO have review ol his case,
when, II u involved judgment Tor money only. II
would exist matter of right The defendant stands
by the Law OF the state entitled 10 all the privileges
which could be accorded TO any other person in his
mutation; and although he may be guilty OF tho
urocious crime charged upon him without, as seems
rom tho charge OF the learned Judge who presided
inv apt,arent motive TO commit H. think the MAJESTY
dtho law will be sustained by granting him reason
Iblc stay, that his appeal may be heard finally.
TELLlNG rHE NEWS TO rHE PRISONER
Having had the above opinion duly certified In the
.erks ohce copy served on the Sherin, Mr. Mott
rsiied the prisoner IN the Raymond street JAN In
Brooklyn. II being the prisoners sabbath yesterday
Ie engaged IN devotional exercises. When Judge
srady's decision was made known to him he raised
both hands alon turned his eyes toward the ceiling,
md aftcr standing thus Tor about a minute, slowly
brought down his hands, and extending one TO Mr..
Mott shook h with warmth expressive OF his heartfelt
Eratitudc but he did not utter word Subsequently
DO stated that he could not say anything about the
matter as IL his sabbath, and, having aean gone
through the pantomime described, Mr. Mott leI HIM TO
pursue his silent devotions-
The writ OF error granted by Judge Brady is made
returnAblc before the General Term OF the second De-
panment IN which Brooklyn is included, which meets
At PoughKcepsic on the second Monday OF next Nay.
Whatever may be the decision OF this court the case
will doubtless already iutlmated be carried 10 the
Court or Appeals
RULES FOR MEETING VESSELS.
In the United States District Court in Admiralty
Judge Batchlord rendered decision yesterday the
suits Of Marx H. Luikn ct al against the schooner
Greene County Tanner, and OF Simeon Fitch ct al
against the schooner J. W. Woodruff These were
ca liocls growing out Of collision which occurred
In the Hudson River, OF Jersey Caty, the l4ih OF
November, 1874, IN the daytime, between the two
scnooncrs named above The wind blowing down
the rvef, and oOin Vessels WcTt lrlor 70
the collision both vessels had been standing on the
s,atboard tack heading toward the New Jersey shore
from tho cry OF New York The Touncr was ahead
and stood her tack, and went about The New
Jersey shore and came upon her port tack The
Woodruff continued on her starboard tack, and
the two vessels colliied Tho claim on The
part Of the Woodruff s that both vessels were close
hauled, u tue duty OF the Tanner having the wind
on the port side 20 keep OF tho way OF the Wood
run which had the wind her sarboard SIDE that u
was equally the dnry Of tho WondrrN TO keep her
course and that the Tanner fault IN not avoid
inr we Woodruff The substance OF the decision s
that the rule OF navigation N such case IS very clear
that the vessel the port tack must avoid the other
and that The latter must keep her course II
thc does Keep her course and collision cnsucs the
burden OF proof on the other vessel 20 show some
satisfactory reason Why she dd keep out OF The
way. The libel oi the Tanner DO dismissed. with
rosts and IN the oy The Woodruff there must be a
dccrce tor the EtcilaGs, with costs, with reference
70 a commissioncr 10 ascertain the damages
IMPORTANT NOTE CASE