The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-12-15
THE COURTS.
Motion for a New Trial in the Silk
Smuggling Case.
"AID AND COMFORT" TO TURKEY.
Charges and Specifications Against Police
Justice Duffy.

In the silk smuggling case Judge Benedict, holding
the criminal branch OF tho United States Circuit Court
before the commencement OF the argument ye"er-
day, on the application for new trial OF owen anu
Gra called attention TO the fact that ne mad received
letter from Judge Dittonnoeer and Mr fost suggest
ing TO him TO invite associate judge 10 SIT win
him on the hearing OF the motion, as review could
only be had by appellate court II the two judges
etunr In the letter the counsel expressed
great confidence In the individual Judgment Of the
Iuaeo but believed that the Judge himself would be
des,rous that such course DO taken. His Honor
stated that only circuit judge could sit with him,
md that IN consequence Of the absence OF circuit
iudre IL would be impossible to comply with tho re-
oues Ho called the attention OF the Bar 10 the tact
TINT bin was pending in Congress providing for
lust such an appellate court, and he hoped they
would agitate in its favor, as 1t was fearful RESPONSE.
bty for a single judge TO havo tho absolute and final
dctermin nation of o criminal case.
Judge Dittenhoefer then commenced his argument
on his motion for Of judgment, and after
viewing proceedings In the case to the rendering
OF the verdict by the jury. commenting upon the law
of conspiracy the admission OF the Wells letters and
the confession OF Owen he directed the attention Of
the Court TO the testimony against Grail
turning now TO that portion OF the case which ex-
clusiyey affects Graf, what do We hndY The evil
dence connecting him with the conspiracy isvery
meagre The accomplish, Scott tostlhes That In June,
OF this year. Graft came 10 him at NowPs drug store,
and said II want to learn from you what those large
cases contain that Tom Owen brought" Scott con-
tinues:-"These were his words Because he was
only pay ng him tho price for landing large
case as no did Tor landing barrel and he wanted TO
know IRON me what quantity OF goods
large contained, and informed him that II con-
tanned nearly three barrels That the object he
had in meeting me. AT that time ne mentioned that
be got f5 barrel" When we remember that tom
Owcn' I'm both barrels and cases In 1877 this
conversation cannot be strained into an aiusion TO
matters prior to 1871. The accomplish HOW'LL tessi-
that Graf was at his store three times the spring
OF this year. Then IL appears that Graf was dock
OF the National steamship line, Dut ne
was responsible Tor correct devery Of cargo ana
one witness supposes ne represented Tho company In
designating places Tor cargo on the dock, but there
was no evidence of this aud 1t really appears That any
portion OF the dock tree from cargo habitually
used THIS Is ali tho evidence OF any kind against
Graf. aud the motion 10 discharge him should
have been granted Tho VERDICT as TO him, was
either unsupported by the evidence or inconsistent
with itself In either case IT cannot stand. What
does this evidence show assuming That The jury be-
Nothing more than that Graf was In tho conspiracy
from the early spring OF 1877 TO the exposure. There
is not the slightest proof that he was connected with
the conspiracy before 1877 and the jury had no right
10 inier prior connection. As the only overt act
pleaded and lou nd committed IN December 1879.
over year before Graf entered the combination, We
meet Inc very important question, Can conviction
under the statute be sustained where the defendant
does not Join IN the agreement until a,ter
the conspiracy punishabley AT common law
the mere agreement Is the complete punishable
crime Overt acts have NO 0lner purpose IN
the Indictment or the proof, than to aggravato the
guilt ana establish the TACT Of an agreement made
Whom agreement 10 proved oy other means. overt
acs are essential feature OF The case. There
fore, at common law, It Is mmaterial when party
JOINS the couspiracy-wheiher at the moment OF
original agreement aiterward, the sole question
being whether he entered the combination at any
before a contamination OF It's object II he did no IS
guilty. for the naked conspiracy Is inc crime In" COM
mon punlshes
Al this stage OF the speech OF counsel the further
hearing was adjourned until next Monday.