The New York herald., 1877-09-15
GESNER IN COURT
Legality of an Indictment Found Pend
irg an Examination.
DUTIES OF POLICE MAGISTRATES.
Application for determination and nh
Discharge on Bail.

Tho argument In the case OF Nelson A. Gesner, the
alleged forser. resumed yesterday before Judge
westbrook In Supreme Court, Chambers As on the
previous day tho crowded lts utmos,
capacity, many having como TO see an ex-membcr oi
the Iowa Legislature suffering under the OF such
grave charge and others 10 hear tho argument Of
counsel, which IL was expected would bo unusually
brilliant and iorcible Mira Gcsner sat by tho side Of
hcr husband aud the two, fact, tho ccntre o
quite cotere OF personal friends The prisoner wm
represented by Messrs. John Graham, C. BainbridRe
Smith and James Oliver, ana the prosecution by A.
slstant District Attorneys Herring and Leary.
PRISONER.
Mr. smith resumed his rsumcnt OF tho day previoua
lie denied that the indictment found against Gesnos
superseded tao proceedings before Police Justice Duny
lie claimed tnat iull examination before tho polics
magistrate was statutory right OF the prisoner. lie
discussed at some length the rules governing tho con-
sirucon OF statutes. claiming that there q por
feet harmony between all the statutes app ying TO thA
case lie cited various cases, includlng that ol
William M Tweed showing how tender the law Is u
those accused OF crime. no insisted that tue
chief duty OF tho magistrate TO ascertain by ths
testimony offered whether there is probable cause u
believe tho accused is guilty OF the offence charged.
He referred TO the well known Drury case, In which
tho defendants were accused Of sending an Internal
machine TO tho residence OF Mr. Warner, with v,cw
tako his Iito and who indc,od ponding an cx-
animation, but who being brought before Judge
Edmonds on writ OF habcas corpus was given cx-
animation before tho police magsrate the indictment
being declared irregular and VOID.
COUNSEL
Mr.. Graham, interrupting. said that at this stage
they demanded bail tor Gesner Justice Duty, he
stated, demanded $27 900 bail because the alleged
forged check ior nearly this amount. whereas In
the General Sessions, in IT'S psmy days, only 5000
bail was demanded in cases Of felony.
MIR. Leary opposed this application the ground Of
the Indictment found IN the General Sessions
Mr.. Graham waived the application for the present,
but referring to the Dry case said that his brother
David Graham, was IN tho case, and the decision Of
Judge Edmonds, cited by his colleague, had never
been attacked until IN tho present proceedings.
Mr. Smith, resuming, alluded In most scaihing
terms to tho man Thompson, on whose affidavit
mainly Gcsncr had Deen Indicted
MI Granam said they did not daro to produce
Thompson before Justice Duffy because they well
knew he could not stand cross examination. He
challenged them now to produce TINS Thompson.
Mr.. Smith, again renewing HIS argument, citod
various claimed TO have bearing on tho present
matter Among inc cases cited was that OF Bill Poole
Judge wcstbrook said he would Ike to near the
District Attorney Oh TINS point The statute In case
pain. Tho people supposed to be tho m0viua
party. Having elected examination pcoro police
magistrate, could thcy abandon its Tho statute, while
protecting the peope also protected the accused,
should he not remand the prisoner for examinstiol
before the police maaistratey Ho wished TO hear tue
District Attorney on TINS point.
PROSECUTION.
Mr.. Herring said that 1t was evident good deal a
foreign matter mad been nterJected INTO tho case Al
hnl nal been said about Weston he did regard a
german TO tho case.
Judge w0stbrook suggested that tho simple point u
discuss was whether tho indictment super seucd the
cxaminat on.
Mr. Herring said he would follow His Houor's sus.
geston. There were two questions to be discusscd-
nrst 10 tho sullcicncy vi The ndic,peIt and
ond, as to It's regularity The preliminary exarnIns-
ton had purpose which may result in the prisoner's
Grand Jury. IT, while the examination Is pending an
indictment has been found, what tho good OF gong
furlhcry Here is system inaugurated to determine
whether tho should 90 TO Tho Grand Jury. In
wnat manner Is this prisoner divested OF his right
how Is hc hnrmedY
Jadse westbrooe--ls he not prevented being con-
ronted with his witnesses?
Mr.. Graham--We have scared away Thompson II
they give time We VIII scare away Sprague.
Mr. Herring SAID that prisoners were not confronted
with the Witnesses IN the Grand Jury room. Hs
could not thnt prisoner was put IN post
ton by being indicted by Grand Jury pending an OK.
mnulion than If indicted alter the examination. He
cited various authorities, including declson OF Re-
corder Hoffman holding that al times II was proper
TO nni an Indictment pending examination before .
police magistrate.
Judge Weslbrook- Couceding the power OF the pco-
plc 10 indct, must not the police magistrate 60 aud
discharge his duties prescribed IN tho satute Does
tho statute protect the people alono; docs II not
also throw IT'S shield about tho prsoncrf All that
sskcd simply to have the remandod 10
the polIco magistrate Tor the completion 0f the
iGation begun IN the case.
cnEcg POLICE JUSTICES.
Mr. Herrine-supposc tho magistrate reiusos 10 GO
on with the examlnatonY
Mr.. Grahaun-Have him indicted, then.
judge Wcst5rook--Pcrhaps mandamus from thh
Court would teach MIN ms duty
Mr.. Herring insisted that unless there was an i'm
Piled prohibition IN tho statute governing cxanins
ions by magistrates there could DO question as u
the proprety OF finding an indictment pending AZ
cxaninAtion
BAILlSG or GEsxEn
Mr. Graham said that II Recorder Hoffman had
taken the palos TO walk from The front TO zoe back
asccrtaned all about the Drury case, nut evi.
dent that iii writing That opnion there was clearly
IA forosone conclusion against poor Hcncrman, the
prisoner. lie then aluded to motion OF similar
character made by himself IN lS4c IN tho Recorders
Court VINO, at that time, assisted by Alder
men, which Court granted his mot tion. Nowadays 40
Indictment had como To be regarded as u terrible
thing anu could only be approached Bonded kreo
Ho pictured the arbitrary manner N which Gesner,
he alleged, had roatcd in order, as he SAID, Ia
satisfy Tho grasp tor power OF inc Grand Jury. lie
asked that tho Court should see 1T to grant thoiI
request hs would SIGNIFY tho amount OF bat
to be required. Things were greatly dinercn,
when Brady and whiting IN their prime.
These gentlemen had established prccodcnts whcn
were monuments To thor industry. Now objco
was TO save iime and money for tho prosecution. Il
they would money by having fewer judges II
would DO very well and TO navo them at less salaries.
lie claimed that tho only charge here was forgery IL
thId degree, and thai tho pail should not exceed
IN some different way IRON what 1t vas at present.
Mr. Herring sad that the police MAGISTRATES would
doubtless be very thankful II tho learned gcnteman
would give thea lecture on their duties.
Mr. Graham replied that hc would have to get q
crowbar TO pound II in their heads.
Mr. Herring did not reply to this retort, but pro.
nounced 1t as so much twadde about kidnapping, and
expressed his utter surprise at any inunaton tho
innocence OF Gcsnor. The application bali ho con.
sidercd premature insisted that 1t should nrst
be made before the committing magistrate.
TAKING rAPERS
Judge Wcstbrock stated that he would not formally
give decision then. Tho question a very grsvs
II clear that the should DO projected
In his rights. He would not mpuc bad nor want
OF respect 10 the prosecution the they had
taken, but no would the all It's legal
aspects and give his decision at an early day.
The counsel passed up their papers, and the
speedily cleared oil It's tnrobg Of spec
tators.