The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1879-07-17
THE SMITH-BENNETT CASE.

| THE WRIT OF ERROR AND APPLICATION FOR
FOR THE MOTION AND ATTORNEY GENERAL
STOCKTON AGAINST.
TRENTON. July lG. 1872
To-day in the Court of Errors and Appeals. before
the Chancellor and fourteen judges, the Smith
Bennett Jersey City murder came up for argu.
ment on a writ OF error and application for new
trial. The State represented by Attorney Gen.
eral Stockton. Prosecuting Attorney. McGill and
Mr.. w. \. Johnson, and the defendants by
Messrs. Collins. Winfield. Fleming and Hoffman.
The argument attracted great attention and
was listened to by fair sized audience After
the Attorney General made motion to strike out all
the assignments of error and the Court on that
point reservng decision, Mr. Winfield read Judge
Knapp's opinion. delivered in the Supreme Court on
Friday last declaring the grounds of error not sus-
tanned and that the judgment below should in all
things be affirmed. He next read the charge to the
jury and then the famous letter which was written
by Bennett to Mrs. Smith. and the construction of
which, it is believed. lad great weight in securing
their conviction
THE ARGUMENT.
After this he proceeded to argue the case. His
opening follows:---
Preceding the argument of this matter before the
Supreme Court, a motion made in behalf of the
State to strike ont OF the gnments OF
That court did not hear argument in ol position
to the motion and directed the argument Oh the
merits to proceed, without intimation whether it
would deny the motion or grant 1T, in whole or i'll
part Thus, the counsel for plaintiffs i'll error have
been obliged to arrange their views Oh tho assign
ments of error Us filed. without knowing what
changes the decision of the supreme Court
found to exist in these assignments re-
spcctfully submit that this Court should not
in criminal in civil cases. bn. should look at their
substance in order to promote justice and prevent
error. phipps vs.. state Cad. Crenn.). 344; State
vs.. Mcnamara Nevada. 10.
| In presenting to this Court our views on this in
teresting and important case we beg leave to group
i'll presentation such assignments of error
| bear the same point This method will shorten
the argument and oreclearly present the views we
entertain upon the exceptions taken Mt the trial.
THE REcoRD-No LAWFUL TRIAL.
We submit to the consideration of the Court that
does not appear by the record that the trial which
resulted in the conviction of these defendants was
had before the Court of Oyer and Termner-in fact,
it does not appear before what Court they tried
Justice and three judges of the Common Pleas, but
does state in which court they sitting and
these judges constitute the Orphans Court well
as the Court Of Oyer and Termner Technical errors
| substantial in criminal cases The name OF the
appear with reasonable certainty. There has been
| uniform mode OF making up records. This is de-
| parture from the forms. The State depends upon
the words the said court occurring in that portion
the record which rectes the second trial. refer
| ring the Oyer and Terminer named in the begin
ming of the record But the difficulty lies in the
fact after the naming of that court and before
the words '.the said court" tie Supreme Court and
| the Court of Common Pleas are named. The Com
| mon Pleas being the court named immediately pre-
| ceding the words 1.-The said court
| FORMER JEOPARDY.
| The record shows that these defendants were
placed upon trial in the December term OF the Hud
! son Oyer; that at the end Of the week it sug-
| come deranged in his mind and thereby incapaci-
tated him rom sitting further upon The jury; that
he was discharged and afterWard the remainder Of
ton to the power of the Judge to discharge the
jury under like circumstances. after investi
CATION and adjudication i'll homicide case, we in
that the defendants had interest in that jury
which could not be taken from them without notice
and without due procedure to ascertain the right Of
the Court to exercise its discretion in the discharge
l. The defendants should have had notice that the
examination OF such juror was being had.
= 1t was their right to present such examination.
| J. Such examination should have been had in tho
| presence OF the Court and OF the defendants.
| ILLEGAL EVIDENCE
Under the eleventh. twelfth and thirteenth assign
ments of error, and from the first to the fourth bill
OF exceptions inclusive we claim that the Court adj
mitted in evidence certain alleged expressions OF ILL
band made respectively seven four and two years
| previous to the trial. We submit that the
| Court erred in receiving evidence Of these
| expressions SO long previous to the homicide in
| dicating i'll the slightest manner the state of her
feelings toward her husband at the time of his DEATH
This evidence may have had injurious effect upon
the defendants in the minds of the jury and ii
is enough to set aside the conviction; and it is
reasonable to suppose that il there state OF ill
| feeling ut the time these expressions made
continued to the date of the homicide The Court
will observe by the evidence that at the time of the
| trial Mrs. smith she not yet twenty
five years OF age, that at the time OF the alleged
presslons first referred to she could not have been
| the age of seventeen years. They the
thoughtless expressions OF petulant girl. and yet
so tar can tell. they were taken by the jury
with the same damaging force as II made in more
| homicide While we do not deny that proof of ILL.,
will toward the deceased on the part of the prisoner
trial for murder is competent yet submit that
the proof should be confined to expressions OF
| ill-will made within reasonable time.
LETTER
The fifth and sixth exceptions included in the
| eleventh, fourteenth and fifteenth assignment of
errors were based upon the improper admission in
| evidence the letter written by Bennett to Mrs.
Smith. While the Court may be inclined to hold
| that the subsequent acknowledgement of the letter
| by both defendants in their testimony this
error, submit. If the Court shall not take that
view. that such admission was entirely illegal for
the State utterly failed to prove that the letter Of
fered in evidence was the one which Mrs. Smith had
thrown in the closet
THE CHARGE.
We submit that the charge of tho Court OF Oyer
and Terminer did not in letter and spirit conform to
our requests and that s1cn requests contained a
true statement of the To .ully appreciate this
pout and test the charge the entire testimony must
be read Indeed, the requests necessarily bring 1t
before the Court, ami pray the Cofrt to and
weigh 1t. Many of our direct exceptions to parts OF
the charge il, effect but specifications OF the
! departure of the Court from the spirit OF
enough that in general pcrfunctory way the i'm
portant doctrines OF the law on the presumption of
Innocence and the necessity OF proof beyond rcs-
| sonabe doubt. should be stated. They should per-
wade the whole charge and be brought out in every
distinct part of 1t.
Again, we submit that the Court exceeded It's
powers when IL theorizcd about the case and gave
the jury liberty to ut verdict b. speculation.
We think, too, that iii INSTANCES the facts were
not accurately put to the jury.
Counsel then commented tho question OF q
reasonable doubt and presumption innocence.
citing numerous authorities. and then advcrtcd to
the theories of the Judge in his charge" making
in detail points The special exceptions to
the charge were then recitcd OF which have al
ready been published in the HERALD. and counsel
| concluded as follows
We feel that have but feebly and imperfectly
presented this important cause indeed, we i'm
peded By it's Importance and ovcrpowering sense Of
| our own responsibility. We ask the Court
| to look for itself and not treat
| effort as exhaustive. We say frankly and
| earnestly to tho Court that although the