Evening star. [volume] (Washington, D.C.) 1854-1972, 1892-06-01

THE COUNSEL FOR THE CONVICTED MURDERER
AND THE DISTRICT ATTORNEY PRESENT THEIR
VIEWS TO THE COURT IN GENERAL TERN This
MORNING.
This morning, in the Court in General Term.
the petition of VIM. d. Cross, the colored wife
murderer, sentenced to be executed on the 10th
instant, was heard the petition. as mentioned
In The STAR, having been certified to the GEN
eral Term by Judge Montgomery to be
heard in the first instance The petit
ton, which has been published in
HE STAR, after reciting q history Of the
case, prays the discharge Of Cross on the
ground first, that the Supreme Court of the
United States having decided that the Court in
General Term had no authority to allow a writ
Of error to the Supreme Court. it (the Cour, in
General Term) had no authority to postpone
the execution from the day set by the trial
court, January %. 1892. to June 10, 1892;
and second, that the first named day having
passed without the sentence having been exc
cuted the defendant cannot now be resent
enced. and must, therefore, be discharged from
custody.
Mr.. sHILLrNoroN's ARGUMENT
After reading the formal petition, Mr. Shil-
lington, of counsel for Cross, said that as he
understood it the only question now before
the court was whether or not the petition showed
such probable state of affairs or entitled the
peutloner to an issuance o; the writ. when, the
warden having made his return, the material is
sues could be determined. Mr.. Shillington then
noted the authorities relied on by tho peti-
tloner and claimed that such probable cause
had been made out as entitled the petitioner 70
an issuance OF the writ.
DISTRICT ATTORNEY COLES REPLY.
District Attorney Cole, on behalf of the gov
eminent, said that he supposed the petition
had been seriously made, but he confessed he
hardly knew how to so treat it. and failed to
see tina; there was really anything in the petit
ton or in what had been said by Mr.. Shillington
needing reply. He thought the best perhaps the
only reply the government could make was the
decision OF the Supreme Court Of the United
States in this very case. He then read the de-
cision of that court, wherein the court said,
among other things, that the judg-
ment was not the judgment Of the
Court in General Term, but of the
special criminal term of that court. He called
the attention of the court TO the reference by
the Supreme Court of the United States in it's
opinion to the appeal to it Of the Chicago an
archists, the court reaffirming its decision in
that case In the present one. In those cases
the supreme court Of Illinois fixed the date of
execution after the Supreme Court of the
United States had affirmed the decision of the
former court.
District Attorney Cole read the decision of
the Supreme Court Of the United States in the
the anarchists cases at great length, contend
ing that in those cases the supreme court of
Illinois had, as had the Court in General Term
In the Cross case, made the Judgment of the
criminal court its own, and therefore had full
authority to postpone the day of execution.
The Court In General Term, at the request Of
the defendant, granted a writ of error TO the
Supreme Court of the United States yet coun-
sQl in and aNalr
sert that the case in view of the decision of the
latter court rendered in this case, was never be-
fore the Supreme Court. The governments
contention was that while the case may not
have been properly before the Supreme Court,
it was there nevertheless to all intents and pur-
poses, and the court had virtually said so in
passing upon the defendants appeal
The district attorney cited authorities to show
that court has at all times full power over its
own judgments and can extend the time for ex-
ecuting its DEGREES. In the present case the
Court in General Term had so extended the
time within which its judgment was to be ex-
ecuted.
Replying to the contention of the petitioner
that the day of execution having passed the
defendant could not be resentenced, the district
attorney asserted that neither time nor place
was part of the sentence, and read New
Hampshire, New York, Indiana and North
Carolina authorities in support Of his position.
Judge James-1hat is, the government con-
tends that the judgment of the court is death?
District attorney-Yes, sir; that is its precise
contention. That the judgment is death and
that the court has power TO enforce such judg-
ment at such time as in its judgment il may see
fit. We contend that the time of the execution
of the Judgment is immaterial and NAV be
| altered at the discretion of the court.
Continuing, the district attorney said the
situation of the defendant was as il he had
escaped. On his recapture after the day of
he had fhar uarrlA he M,
doubt of the authority of the court to resen-
| tence him. The day of the defendants exeeu-
ton had been postponed ut his own request,
and he could not well complain. In conclusion,
the district attorney said that if this court should
come to the conclusion that il had improperly
postponed the day of execution all the authori-
| ties justified it in bringing the defendant into
court and resentencing him. But the Supreme
Court of the United States in this case had said
that the Court in General TERMS postponement
Of the execution had been made necessary.
ME-. SMITHS CONTENTION.
Mr.. Smith of counsel for Cross contended
| that until the recent decision of the United
States Supreme Court in this case had been
rendered this court had been treated as q court
of the United States.
District Attorney Cole-Wen, who denies
that?
Mr.. Smith-Please don't interrupt me.
D1strlct Attorney C0le-l merely want to say
that don't see what you say has to do with this
question.
Mr.. Smith-Well, Tn not responsible for your
deficiency of comprehension.
District Attorney Cole-Ah!
Continuing, Mr.. Smith said that he merely
referred to the matter in order to show that
counsel for the petitioner was not responsible
for the present state of the case. 1t seemed
that the District Of Columbia was looked upon
as proper field for speculation and experiment,
and it also appeared that the decision of the
Supreme Court was due to the efforts of one Of
the departments Of the government to curtail
its labors.
Referring to the contention Of the govern
ment that the court could postpone the execu-
ton at any time, Mr.. Smith claimed, first that
the date could be postponed only by
the trial court, and, second, that the
date could be postponed during the term
in which the trial was had, it being necessary TO
keep open the term from time to time until the
mandate Of the United States Supreme Court
had been received This had not been
done, and it was now too late
to remedy the mistake. While at COM
mon law the date of the execution could be
changed, the common law was in the present
case overruled by statutes of the United States.
This was United States court and must there
fore, obey the statutes Of the United States.
If the special criminal term had no power to
r,oafpopa hod tho No,,rf IN, Gapoval TER, s,,ob