New-York tribune., 1876-01-06
ANOTHER DELAY For TWEED.

lnc long ulSpUUt ONtl VIC siiuth lhJ
ing been submitted Tuesday TO Judge Wesbrook TIC
courtroom yesterday crowded with persons expect
ing that the case tho People against Tweed would be
at last brought to trial This expectation was disap
pointed Two main questions were presented 10 Judge
westbrook whether the Commissioner of Jurors had
properly discharged his duties the other whether ms
take OF clerk in writing George W. southwick in place
John c. soutwck in the list sent to the Sheriff was
mistake fatal to the panel Judge Westbrook held the
first objection invalid, but that the clerical error was
fatal Judge westbrooks opinion is substantially as
follows:
Preminarly to the examination Of the specific oljec-
ti0us, il is important to notice consideration Whch ~
necessary to he remembered in passing upon each ana
that the object 1 the statute which makes special or
struck jury IL passed to give parties IN dncmt
ana extraordinary case jury of more than usual intcl
gence and nlegrty The mode of obtaining such Jury
is clearly pointed out by statute, ana as h r
a special proceeding designed for particular
purpose, and out of the ordinary course OF procedure
the mole Of obtaining II which tic statute points out
be pursued In the OF an ordinary jury when
the solo obi is to obtain competent jury 80 long ~
there is one competent Obtained, minor bonc"hliaHgo
with statutes may be oyerloohed but when me Oncct
the procuaton of one most Indifferent hetMrch tne
parties, ana bH gualed u iih sueh caust ui % tno
way OF its Obilinmen II presented II necessarily follows
that that way must be mandatory ana u 10 ~ rigldy
pursued Frs: Has tho jury Dceh s1leeVa nS e ti,ys
nom a proper list II jurors h!od IN the clerks
Office In beginning this discussion, We must see
what the provisions OF the statute on this sJec
At the tine appointed the Clerk OF the county hla
turned 10 him iy the officers 0i thc Veial o"h Wlo
tnon liable 10 -cINe and IN me pf nee ui tne PAT
their counsel tlin fnrfu 10 NlilhF july -
lows The Clerk shall select rom Sucl siS ~, nam o
~ persons whom he shall deem Ep-t lI1ucltul
such cause" They are to be taken fr9m we
lists OF Jurors returned 10 tho Clerk ~ thc
officers Of the several towns. SgppJse, tie scltu1u
was in the country, that the lists were hed and the
names aAen from them, would the objection tnat
the lists furnished to the Clerk were mpoieci-tnt the
officers had not done their duty-he vdhdl lhlhk NOT
the Clerk has Obey ed the sttIut ana tue mere
omission ty the officers would not nyadae unless cor
rupil, done, working ptrcepihle pr,julic". The
officers making rrturns scarcely ever 30 thcr M In
Jury or any other could he obtained. In Apply
ing this statute To New-York City We must
interpret " and use IT'S machinery, as nodhcd hy cgsA
ton applicable TO this city. In leu OF lists by town on
flied with tie CLERK from which the selection Is made
see Chan 49, Laws of 1SI7, Section - you have list
I,y,s ann tcr tins nrst d,y oil NAY i'm each year as
the be prepared, and when such liz u com
plctcd certified copy snail be delivered To the County
Clerk Who shall prepare the ballots and dcpOsit
them In box u te manner now required 10y law ihe
said Commissioner may at any time IA Ike manner rr-
tum the names Of any persons omitted III the list 10
sufficient cause 10 excuse such exists, and their
names shall bc deposited IN the box ~ Jui"ra Tor the resi-
due The year that he other Jurors are 10 serve From
Tho vast afI alctuang pulai0n 0f the city perfected
list OF jurors can never Do Obeihci Nih 'n' lt-icn,
of the CJIImi-siuner Of Jurors upou tho whole body
of those possibly liable Ds ODttincdf Hence, from
uecess ~ well by statute, ho mu.t send H.s from
time time. and all those sent up 10 t t" ol the
lection OF the struck iury bOs from whici the srec
tiun H. made. IA In the case oi iis9 furnish by town
officers, they may be incomplete ana lmmfi,C, !s' t,
are those from which the selection must d, ndei ana
when made, the mandatory law iS ob,ySd. NoH 10
the Commissioner OF Jurors nddo Ahi n'eu sum iet'
when the present selection was madei IL II true
he had not filed u copy cerihtd TO be copy o.
n such certified copy hal been filed
il would only have been an Official notification 10 the
Clerk OF the persons he had selected 10 serve as Jurors
and when the law gave hm the RI Int 30 To select NOW
H. instead Of telling the Clerk indirectly what Jurors he
has slected as coIctcnt O serve by ccI ms 10 1coB
of lat which nc has prepared anu mas on NE III hs ""
Office he tells the CLERK directly VINO te 1I05 selected
by simply 80 decia hS' ~hat sunhidnti" uioIch,o
existsi The result-thc scection OF Jurors com
petent to serve and the indication thgreoi 70 & the
communication to that officer whether Indirectly ny GER
tiiyng list true copy o list of names selected
or directly 10y declaring they are tue persons chosen can
make no difference. A the Clerk OF the county td In
made Of names whom the Commissioner OF Jurors by
official certificates had dlarcd coihpctcent to serve ti7
first ground Of challenge cannot prevail ...
second What 10 the effect Of summOning only % men
whose names appear on tle lh.s from which the rccc
ton should been made, and whom the csors chose
and of additional person. GoOige W. sOnthwick,
whose name dos not appear on The iist To Whch llc
choice must bo limited, AMI whom the cisois did not IN
fact design The plain requirements OF the statute
are that Is sua BE- chosen from the isis returned
has stricken on the selected ist l. names, ~ snail
remain, who have aud all passed the Judgment OF
the cis0rs; that the process winch ISSUES To me ahcrh
shall command him To summon thc Identical ~ n"u, ~
more. no less that the Sheriff can only summon the
il evident from the provisions OF The statute, the ish
section Of which Second Revised statutes, 43j, ld
monds EIlti0u) requires the selection al - persons
from the original Lists Of Jurors returned 10 me Clerk,
Office from which st each party shall alteiniely strike
l. namcH thus leaving the result OF the selection -
WbrreupOn thero shall DO male out li7t ot
tine names Of tho ~ persons not stricken out" which
shall bc certified Ia be The persons drawn u serve ~
IiU' I NJ, ,' aI ~ ce,n to the Shena of the c"iity
4yth section then requires the sheriff To summon the
persons names contained on TIC lists 80 tie
ycrcd 10 aim by tno Clerk ana there Is no authority
for the Sheriff any other persons than those
whose are contained upon such lists. Tested 10y
the,e rrs the proccssOr such the list TO be furnished
the sheriff swas radically detective IL did not con
tam The twenty -four names upon which the jung,
23 such, ami ~ II added one George soutiwick
never chosen and from wasomittod one John South
wick (cOnic,sediy two distinct persons, both having
an actual existence ana bOth ples,nO, VINO had been
selected When the process TO the SneTil, which must
contain the OF "a PERSONS vino nave been selected
and chosen in mode pointed ont includes the names Of
only 23 1t DC held to be valid And when the Sheriff
summon the persons named IN the process, can lie
summon any othcrsi IL seems To me that the answers
10 these questions must be IN the negative.
The challenge to the array then must he sustained
this ground because rst, II the certificate Of the esOrs
be taken the evidence Of their CHOICE "a men have not
been chosen as the law directs second the certificate
OF the bo not the sole evidence of such choice, but
he may resOrt-is the counsel for the plaintiffs Insist
To the evidence Oi tho prues VINO hae the setct0h'
then tho process authority for the hdinn0ng was lie
fcctive, because It did not direct me summon,
ing OF the persons cn3sch' Ia Isposns oil
the questions which the chalengc involves
have not overlooked TIE Importance o s cause nor lne
desrabiity OF an early aud speedy iTlal result,
which will be such in fact and IN truth, can only be
defined course OF procedure delay OF few days Is
better all than very much longer one resulting o
erroneous procedure
After some discussion between Mr.. Carter and Mr..
Peckha Mr. said the prosecution had OF course
taken a different view from his Honor Judge West
brook nterrupng, said he had sat up TIL o'clock con-
sideriDg and examining the question: and had consulted
some of his brethren who had authorized him to say
tina; thoy ooncurred in his views Mr. Carter said the
counsel for the prosecution had thought this fault II
fault it wee might be amended under the broad powers
OF amendment which the Judge had, but were not now
prepared to make any motion He asked that the case
be laid over for "a hours 10 enable them to decide on
their course.
Jdge westbrook said he would not enter the order I'M
medatey but would require tho jury to attend again TO-
day. when such motion as might seem proper TO the