The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-12-05
JUDGE SCUDDER'S DECISION.
SETTING 1STDE THE GBiND JCROR
TH.iT WIS en- IIIENGED.
The voint vai'cd In thr tnse Of thc state
uani IN Sew nrunswtrN, =. ~, ~ settled
without GedlIn. az Abstract lucstioa.

latiOuship 10 two of the bank directors who are
accused Of conspiracy 10 dcfraud the deposilors
Of the Slalo bank 10Y issuing false quarterly
etotomcni showing $3.50 0Oo OF nssots IN Janu-
uary. 1877 whilc the bank failed IN the follow
ing March with prAri ically no anscts at ali. Tho
aisle, were crowded and police officers were
present 10 kccr ord,r postmaetcr Fisher. the
challenged foreman Of tie Gfaxl Jury. took his
ulacc with hi4 colleagues rs their nnAcs wcro
called. All wore prcs'ul excerpt Col. Uoughlcn.
tho Collector of the Port 81 Perth Ambuy Ilc
appeared fcw minutes later. made good time
up the aislc with his ono lcg. aud -milingly
cok his place
judge Scuddcr punecd ut once into the sub
irci: In thia nai,rr." hc said. OF challenging
tho foreman Of tho Grand Juiy. tho challenge
of courec. should bo formally made. and the
Court should have somo evidence Of ,ho truth
of the charge that tiore isa relationshn be-
tween these parlica The Court cannot act upon
II without some proof
Prosecutor Cowcnhovon began 60 read tho
nflldavlt Of Alderman John T. CLARK upon
whose complaint ns depositor tho directors
wore arrcstcd. and Judge Scuddcr interposcd
saying that that was an OK partc AFFIDAVIT Tho
mattrr should bo regularly heard upon the
challenge. II should cther be- proved upon the
voir dirc OF the party himself or upon othor
testimony In open court.
The Prosecutor busted himself in writing for
n fcw minutes. The Judge asked for the Ro-
vscd Statutes and pored over them The as
sociato Judges convcrsed In whispers bcside
him. Tho lawyers within the bar exchanged
wugers on the result Tho audience. among
which wcre Sonic =; .c q. cs..5Ss ct the de-
| funH bank. awaited patiently what was coming
| next The Prosecutor finally arcse and read
th9 formal challcnge he had lust prepared
i tlAH tf.ta 0toN.,
The challenge by examining MIR. Fisher himself
or hy other proof.
The Prosecutor elected to have Postmaster
i-her sworn. aud he cGmc forward across the
court room 10 the witness stand. MIR. Schcnck
gnco moro intcrposcd He asked the Court
In all challenges at common law or by statute
| there puSt bo party To- traverse or dcmur
Where Is lhnt lart{ here Z Can proof be re-
Judge Scuddor-Tho proceeding. Of course Il
anomalous. and there l. very little authority
lot i qnywhcre; but rccsl one cas-, whore
precisely this COURSE wis taken. IL was the case
~ Tucker in Sth Mass. The grand Juror,
were called. and Mr. Justice Nory aru-e IN
court. and. Hs " "a fri0nd OF the Court. not rep
It-Nntiug anybody nj all. mane the suggestion
that one Of tho grand jurors had been prin-
cipal prosecutor against q person who Was
came from ncighhorhood whcr, there had
been great excitement on tho subject. and he
urged that tins person was not competent to sit
~ a grand Juror under tho circumstances.
Upon that suggestion from friend ~ the
IN what was said IN this mntter ve-torday-lhc
Court aNod. The bar and the Court seemed 10
No. No. ~ H. tr,a ~ M uouni WE, ','nI-e Y" IHr-nc o1'
lcngc we're insufficient. aud the grand Juror
wis sworn. II seems to me tha, the proceeding
Inn ~ h ~, & "A P P'I'r ou, Inv ~ Il ~ sia
jurors gro summoned and sworn. The unca-
tons beyond that we tho Court viii HdIudicato
Mr. Schenok pSTsisicn,ly poinicl out thc dis.
cbnilenyo vsns nn h,Ln ali ~ tbn dniend,,t I'll,
Prosc'u,or argued The cpc,,nai ririt of The
ut"n 18th Gentlemen ns friends oi the Court
and said he would honr the proof
Postmaster Fisher vas sworn In answer to
the Prosecutor be- admitted that he was related
Joseph Fishor. sen. and Joscrh Fisher. Jr..
two ~ tha directors Tho srnior Joseph is his
m9lhc!s 6ro,hgr the Junior Jos"ph Is NJ
cousin.
Tho Court yaa prepared a. hear the argu,
the Prosecutor doubtullv, II he Ind Hny inW.
Tho frnsecutor cited Wharton's American
Criminal Law BWvn'- Nhrldgmont llnl-rai's
anl Nnntiskie.s h"l"n- AMI lNwklns- Pleas
uithe Crown to show thai tho same objections
mat mab he made To- a petit Juror may ho mHio
mnde by any person lnl"rr-t'd ia matters that
Inny come before GRAND Jury. amt that tho
King. or any one IN his behalf can challenge.
either In tho array or the polls. IN tho same
manner ~ prNdt" individuAi\
Mr.. Srhcnck made long anil cogcnt ar.u.
mcnt IN opposition 10 tho states right e. chal-
lonRe. Hc polnird out mo dmeuliirS likcy 70
arise II the principle bo established that grand
jurors summph'u uS thc Sh'tlH can u" chhi.
with assault and battery. NJ such power eK-
i-ts ht common law IL was more reasonable 10
presume TIN, I'm such cases nm Interested grand
Juror would stand aside until H. w'ls decided
ana thon rcIOn his follows. Mr.. Schcnck
quotNt AT length from the opinions IN the cuao
q mis1cmcRnor ag.lusi Edward sheridan and
V!L,nlHs krwgn. III Towards State Trials,
which was Ecd in 1911, IN the rnign OF George
Ill. hofore tho Court ~ KtnE'- Bench In Dub
IN and lac made exhaustive citations from de-
ci,ions In iiif-rout SlAtcs.
Prosecutor Cnwcnhovrn dcirnn--i his pnsi-
tiuns ia turn. But when he launched nui yieor.
uu-y with the remark: | say that ev~n ~
there was not n precedent IN be found from ihs
time II tho fauudltiqn ~ the Govcrunont 10
the preaont time 70 Ahnw thai the State cnn
chnllrnco n grand uror Tor GOOD can.e thinH
IL Is tiino to-day tRni the tteoodeuI sLnuid i,o
esirlL. he'd rho pudioncc sciiifcd T. fny6r the
mo, Tor aunh nm outt,u, st - nnnlaueo orns. T.
the conrt room ~ ibt Jude" S'mdJ'r hnd I" r,l ~
MIND them thai n &c ,vern ma n, +, a r.,,a .nd
ihr.etcr thc m win or,Tai 'N' 80 W ''' ""N
In tLis cnaN he wont on 10 aey re-rgn
.ihlr oil iiz.ns ara chsrrod vim a n,rv scrt0ma
crime men heroioiore trustnd and hnnor,d In
Now Brunswlok Your Honor ,vlii rnn,n,nbnr
thai "A Tow yrnrs AGO one ri our vrrv h.si hn,L
iup insiiution. Tns clns,I iling ,.r..I i',sa
on those u,te~rsi"i In do instit"i {Gn TLc
bank was renpencI and a"me of our h"at men
took cllnrpc of Tia Gnnucee Amin ihc citil',os
rrlylnr upnn thcir character sndnGllVy GorE"j