The New York herald., 1876-03-10
Darling and Green, the Third Avenue Bank
Officials, Before the Supreme Court.
Proceedings Under Writs of Habeas
Corpus and Certiorari.
DISCHARGE OF THE PRISONERS.
Penalty Of Introducing Wrong Man in a
Sensational Wood Cut
DANGEROUS DRUNKEN MEN ON CITY CARS.

An interest good deal exceeding that manifested in
ordinary htgaons before the courts was shown yes
terday the proceedings taken to secure the discharge
ofWilliam A. Darling, Appraiser of the Port and for
mer Secretary Of the Third Avenue Savings Bank, and
Spencer K Green, former President of the bank
der the commitment granted by Police Justice Duly
succeeding the examination concluded before him
Wednesday, and fully reported in yesterdays HERALD.
One OF the grounds of this special interest the
fact that upon the result depended the dispo-
stion of similar charges pending against other former
head officials of the deiunct bank Following the
decision OF Police Justice Duffy the bondsmen OF Dar
ling and Green surrendered them, and they there
upon committed 10 the Warden of the City Prison.
This however, from dlsrust of their respective
sureties but adopted essential preliminary to
application for writs Of habeas corpus and cerorari
which granted by Judge Donohue of the Supreme
Court Judge Ditenhoeier, Of the counsel for the
prisoners in presenting the petition for the writs
asked that they be made returnabe forthwith the
ground that on the 14h inst the statute OF limitations
would prevent further prosecution of the case and
that 1t important therefore that the question
should be decided at once, that the District Attor
ney might take the before the Grand Jury If
Judge Duny's commitment sustained. Judge
Donohue made the returnable at two P. NJ and
transferred the hearing to Judge Westbrook being
too busy engaged himself with other matters listen
to The argument
At the hour designated the case came on for hear
ing before Judge Wesbrook in Part p Of the Court of
Common Pleas Judge Dittenhoefer and Messrs. Robert
E sewel and Abraham Wakeman appearing for Oar
ling and Green and District Attorney Phelps for the
people There large crowd present III the court
ROOM embracing, stated, very many dcposiiors
Of the bank who watched with special interest the
proceedings Mr. Phelps read return 10 the writs to
the effect that Mr.. Darling and Mr. Green held
under warrants Of arrest, granted by Judge DuGy
the 10th OF February last, and pursuant 10 Judge
Dunys decison after hearing the testimony upon the
charges preferred against them.
Mr. Sewell opened the argument on behalf OF
Messrs. Darling and Green stating that the commit
ment on its face was void as charging no offence and
that the affidavits which the warrants issued
charged no offence, in that the statute OF 1901 made
the wul false swearing TO report TO the Bank
superintendent perjury and not the making OF false
statement which the warrants against them simply
charged them with making.
sIr. Phelps replied that though the warrants
were irregular, yet if His Honor on an examination Of
the papers found that an offence was committed he
could mold the parties, though the offence was i'm
properly described
Ex Judge Dttenhoe made quite lengthy speech
in rejoinder He insisted that the statute OF 1857
making perjury to swear falsely 10 the statements
required be sent the Bank superintendent was
soluely Internationally repealed by the OF
1870 without any clause saving and reservng prosecu
tions for offences ALREADY committed Nc raised as
second point that under the statute OF 1857
ports were required TO be made TO the Bank Supcrin
tenient one about the 25th Of January the
condition of the bank the lst Of january and tho
other about the 25th of July to the condition
of the bank on the lst Of that month; that only false
swearing to such reports required by the statute
perjury; that on tine lst OF February, 1871, the
defendants did make report to the condition
oil the bank on the lst OF January 1871, which
not attacked IN their proceedings but that subse-
quently, on the 14th OF March, 1871 of thor
cord, and though not required by the statute they
made voluntary explanatory report, which at
tackled here ana that the offence being statutory and
not common law perjury and the report of March IA
being ultra Urcs perjury could be based on IT, He
raised as still further point that even as TO the
port of March IA, the items which disputed
such items as the statute did not require them TO give
and therefore that no charge Of perjury could lie
Judge Westbrook, interruptng, asked why men of
such high position as the accused raised these cchni
zeal points.
aory, replied that his clients word be able 10 vlndcate
themselves fully and completely on the merits, but that
they desrous OF avoiding the stain and shadow of
an indictment which woudnJure them in public estlna-
tion, even though subsequently acquitted He stated
further, reply that If there offence and
under the law there why they should DO
crmInay tried, and that all questions affecting the
merits could be raised in a civil action
Judge Westbrook said that there was great force in
this argument
Mr.. wakeman raised the additional point that the
statute required report the President to be
signed by the principal officers of the bank, and
that on the face of tie papers Il appeared tnat Mr.
Darling was SIMPLY secretary al interim OF The Third
Avenue Savings Bank, or an accidental secretary, and
not principal officer.
Judge Wcslbrook asked Mr. Phelps what reply he
had to make TO the legal points raised by the opposing
counsel
Mr. Phelps, answering said that though the statute of
ing to bank report was concerned enacted in tho
statute OF 1857 yet the latter statute provided that
the punishment for such perjury should be the
provided general statute fixing the crime of per-
jury and as that was hot repealed these parties could
be held
Judge Westbrook asked Mr.. Fitch, who represented
Mr. Ahrens, the complainant at the police court If he
had anything he wished TO say the matter.
Mr. Fitch stated that the questions raised were very
serious ones but unfortunately he had left his brief
his house, winch he would like very much TO have
Judge wesibrook, after sOmo further argument be.
tween counsel stated that he compelled leave
the city the morning and therefore could exam.
inc the questions raised which certainly very m-
pOrtaDt ones with that care he would like give them.
He was Inclined TO believe that the com mtmenI was
irregular. He asked Mr. Phelps when the statute OF
limitation expired.
Mr Phelps replied that at the latest the matter must
20 before the Grand Jury Monday morning
Judge Westbrook, being pressed to give an immc-
date decision said:-I hardly know what to do about
jcct to punishment, the law Of 1857 making them
punishable being repealed. only know thak,hn Third
Avenue Savings Bank Is in bad condition. 1know so
judcialy because the question as to the accounts Of
the receiver before me- and the judgment placing
them in the hands of the receiver pronounced by
should be sorry TO be understood In anything
remarked saying that these gentlemen were guilty
OF tho crime. The case presents this simple qaes-
tion Tho act under which these parties
sought to be held has been repealed. That
which made the crime and which SUBJECTS
these parties TO punishment is no longer in
existence Now when a court Furnishes for
crimo II can only do so by power OF the law, aud
when that which gives the power no longer exists but
has been swept away, then the power 10 punish falls
sway II necessarily must be so on every principle OF
law Not only is the act repealed which makes the
crime but that which subjects them TO that punish
ment-punishment OF perjury; that they are before
tribunal charged with crime when. the act creating
the crime repealed and when the act which subjects
them TO the punishment for crime is also repealed
On motion Of exJudge Dttcnhoefer Judge westbrook
ordered hat the prisoners be discharged In response
TO similar application made on the same grounds by
hr. Iruax as counsel for William z. Carmun the latter
was likewise ordered TO be discharged,
THE TpXvrN cAcr