New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1888-01-17
ASTEP NEARER THE GALLONS
prNyINa A NEW TRIAL no pRIscoLL


10 APPEAL TO rHE HIGHER COURTS, IF POSSIBLE
THE PRISONER UNMovED.
Recorder Smyth quickly decided on the motion
made by the counsel for Daniel Driscoll, asking
for new trial for his CLIENT who is under sentence
Of death to be executed on Friday. lie received
the papers on Friday afternoon and spent all Jay
Saturday In examining judicial decisions on the
questions involved. He entered the COURTROOM
Of Part III yesterday morning soon AFTER Dis'flcc
Attorney Fellows and William F. Howe. DriscolIs
lawyer had taken their places. The COURTROOM
was well filed
The Recorder briefly announced his decision.
He said that after careful consideration Oh the
case he had decided to deny the motion, because
the evidence alleged to be newly discovered was
mot newly discovered evidence within the legal
meaning of the term; II it were newly discovered
evidence il only went to the credibility of wit
ness on the trial and that is not sufficient reason
for a new trial. and if the testimony of Carrie
Wilson were eliminated there was still enough evil
dence to warrant conviction. He said that he
would file written opinion later in the day
The Recorders opinion was filed with Clerk
Sharks in the afternoon. A formal order denying
the motion was entered and notices OF appeal
to the General Term of the Supreme Court and to
the Court of Appeals were filed by Driscoiis
lawyer The question as to whether an appeal
can be taken is one on which lawyers are nob
agreed but the prevailing opinion is that no appeal
hom such an order can be sustained.
SEEKING STAY OF PROCEEDINGS.
Mr.. Howe Immediately began his efforts to OBJ
tain stay of proceedings conscious that an appeal
to a higher court, even II successful, would DC Oh
no avail unless the execution of the sentence fixed
for Friday could III some way be postponed.
If no Judge is found who will grant a stay, an
application may be made TO Governor Hill. DIS
tfict-Attorney Fellows Will oppose the granting
oil any stay of proceedings or any postponemeno
of the hanging OF DriscOll. He has asked Gov
crnOr Hill 10 hear him before granting any delay
IN the case
Presiding Justice Van Brunt said yesterday
that MIR. Howe and District Attorney Fellows mad
Q private conversation with the Justices OF the
General Term relative to whether the General
Term would entertain an appeal In the case ne
Justices stated that they would not entertain an
the law passed by the last Legislature that all
appeals in capital cases must 60 directly from
the court Of trial to the Court of Appeals.
The news of the Recorders decision was taken
10 the doomed criminal by his wife and mother.
He did not show much surprise when informed
that his counsePs motion had been denied. lie
has all along thought that his main chance Tor nie
or at least a stay of proceedings lay In an appeal
to the higher courts. Late In the afternoon MT.
Howe came over to see him and in the presence
of the three deputies, Kaufman stevens ana
William Burke and the two weary-looklng women,
his wife and mother, read the convict letter
which he (Mr.. Howe had sent to Sheriff Grant.
that an appeal to the Court of Appeals had been
fled in the County Clerks office, suggests to the
Sheriff that he consult with Judge OIL the Ueherai
Term of the Supreme Court whether the appeal
will be entertained from the Recorders decision.
TINE EXECUTIoNER GETTING READY.
II shall not 60 to Albany" said Mr. Howe,
until hear from the Sheriff. If the Supreme
Court Judge denies that an appeal can be enter
tanned. then l will go to Albany and try before
q Judge of the Court of Appeals or before the Gov
ernOr"
Driscoll besought him not to delay too long
"Of course you know, Mr.. Howe" SAID he, The
strain on my mind is terrible"
A covered express wagon drove into the Frank
Inst entrance to the TOmbs yard yesterday alter
noon small man, mutiied in an ulster that
reached down to his heels, jumped out OF the
wagon once it was within the jall yard ana w,n9
beams paintcd a lead color out of the wagon.
II was d Joe" Atkinson, the hangman and he was
bringing in the galows. On next Thursday AT
kinson expects TO erect the structure once more
behind the old prison. next the Elm ST. wall.