New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-01-14
.-rr TRIAL FOR THE FLACKS.
&c rrpGMENT OF THE LOWER COURT RE
-, yrpsEp BY THE COURT OF APPEALS
80, or THE ERRORS HELD TO HAVE BEEN
coMMTTED BY THE TN AL JUDGE

,r or THE ERRORS HELD TO HAVE BEEN
COMMITTED BY THE TRIAL JUDGE
JUDGE BARRETT's COMMENTS
ON THE DECISION.
...ny. Jan. I3.-The Court of Appeals to-day handed
a.. decision reversing the Judgment of the lower
w., IN the case of the People egt James A. Fack and
william J. Fiack'
Inass Andrews, in his opinion. says in part
I'VE are of the opinion that errors committed
S,sS require reversal of the Judgment below. Brief
ssreucc to the law of conspiracy will aid in under
ssss s The difference between conspiracy at common
w and under the NewYorlS statute Is stated, and tho
me claim thas the learned Judge intended simply
hsree that by Of the facts disclosed the udg
%ssrr men, 1t is plain that he intended what he did
IN express termsl TO brand the acts referred to
% divorces and that 70 oS taking :. the ron 's
his hands he declared to the Jury that II the record
sts which led to the decree and by reason Of which the
Judgment was procured, as fraudulent. In this. we
% The and e sS Of
both denied any fraudulent intent 1t could not be
rrled matter of law, that what they did were
msndnlent devices to procure a decree. It was for
he jury no say whether those acts were plumbers
In its Instructions to the 3ury. The court dis:
ssnsn must the e act sa' in oer
Constitute crime, and that the act while 1t may be
,uy II unsccompaned by such criminal intent Is not
4 crime Assuming that the Jury should find that the
without actual authority from Mrs. FIack neverthe
less the jury had the right in passing upon the ques
that his consent to bill Of separation justified the
proceeding for an absolute divorce.
For these reasons, we think the defendants
titled to a reversal OF judgment of conviction.
Justice Barrett said yesterday concerning the de-
eision al simply say that the Court holds that
NAV do a thing which is in itself essentially wicked
in 4t,aI, 4v1N
that it is for the jury to say whether he did the
evil and wicked acts innocently with a guilty
intent. The Court is reported saying that
Intended TO brand the acts referred to fraudulent
devices rsorted to to obtain decree Of divorce But
I did not do merely branded the decree
fraudulent and left the defendants guilt jury
Ny charge has been incorrectly read. What | did
charge the Jury that a decree of divorce which
the uncontradicted evidence showed obtained by
the alteration Of papers and by the procurement of
amdavits which were inaccurate was necessarily
fraudulent both in fact and in law. To that doctrine
! adhere. Then l expressly Informed the jury that
they should not misapprehend my observation to
the decree being fraudulent having any bearing
on the guilt innocence Of the defendants that they
must decide whether not there was a
conspiracy TO obtain the divorce by these
fraudulent means. and IL there was no conspiracy
10 obtain the divorce by these fraudulent
the defendants could not be convicted But the
distinct proposition was that a divorce ODtalncd Dy
alterations changing the attorney without the plaintiffs
knowledge and an affidavit Of service which could not
be true it appeared in the record was necessarily
fraudulent. The question was, "Who was responsible
for tfn The Court of Appeals in substance holds that
even II divorce be obtained by means of perjury and
forgery the actors In the matter may still be entirely
innocent and that it is for the jury TO say whether
such actors innocent or guilty. The Court says
that IL error to charge that divorce obtained
by such alterations and devices were testified 10 by
Mr. Meeks fraudulent, such acts might possibly
have been plumbers. To such extraordinary PROPOSE
ton, / have nothing to say. The Court Of Appeals
IL That is ali / think, however. that the rule laid
down criminal intent is novel 1t certainly seems
30 conflict with the current Of the decisions In this
country and England and also with what has been
generally understood to be the tru3 principle
IL amounts this That in civil case 1t would have
been the duty the judge to take the from the
Jury ard hold that the record was void because audu
lent II seems to have been overlooked that there
was positively dispute Of fact If there had been
any evidence to the contrary the question would have
eyfdencc It seems to that this decision is equiva
ient TO saying that when murderer kills man the
court s bound leave ii 10 the jury to decide whether
r not the man has been killed at ALL.
,iuiou upon conceded facts: that to tel fury that
tain evidence given In the case and characterzng
&c as established fact is This holds 1t seems
TO me- that all the judge do is TO read the statute
TO the jury without commenting on the evidence ana
let the jury decide"
Justice Barrett said In closing that he thought the
effect Of the decision of the Court OF Appeals ad9ered
10 by that court would Be 10 tie the hands OF the
Judge and cOnfne his functions to expoundinG tho
law 10 the Jury without making any comment on the
evidence or applying the law to the facts Of the case
such charges would undoubtedly result in the escape
Of the guilty.