New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1894-02-27
JUSTICE CTLLEN'S DECISION

Justice Cullcn's decision in the McKane case
will increase the feeling of respect for him on
tcrtaincd by the people Of Brooklyn, and will
strengthen public regret that President Clcvc-
land did not appoint him To the Supreme Bench
instead of going as far aficld as Louisiana.
1t involves a refusal Of the certificate Of rea-
sonablc doubt which the lawbrcakcr's counsel
require in order to keep him ont of prison pend
ing an appeal to the highest court Of the state.
The Justices reasons for denying the applica-
ton are expressed with his characteristic lu-
cdty and vigor His decision practically covers
every important point upon which McKancs
counsel laid stress and is strong. trcnchant and
unanswerabc.
The main contention Of the prisoners counsel
was that he was not registry officer. and
therefore was not legally competent to commit
the crimes for which he was indicted. Justice
Cullen replies that the question is not whether
he was legally capable but whether he was
present and aided those who were competent
in the commission Of the crimes. After forcibly
Illustrating the point. the Justice concludes that
McKane was principal in the second degree,
and that the Penal Code aboshos all distinc-
ton between accessory ana principal. making
them equally guilty. Having in this way
legality Of the sentence, he passes To the con-
sidcration Of Justice Bartlett's sentence, which
he pronounces cmlncntly fair, and then TO the
evidence. only one fragment OF which he con
sidcrs open TO doubt.
That was the fy-Spcck to which we referred
in Sundays issue. A copyist testified that when
he served Inspector Morris with an order he
remarked that when he had previously served
a similar order upon Inspector futile the latter
had replied that he would submit the order 10
McKanc II WAS hcarSay testimony which In
advertently went on record because 10 Obiec-
ton was offered and 10 ruling from the Court
was asked Justice Cullen comedies frankly
that this hcarsay testimony was inadmSSiblc
against McKanc and ought not 10 have been
received but he wisely holds that il is trifng
matter which does not Justify him In granting
the stay of sentence nor the Court of Appeals
in Onlcrng new trial. II is refreshing and
invigOratlng 10 find Il Justice Of the Supreme
Court brushing aside petty technically Ike
this with Il gesture of contempt
This hcarSay testimony was unimportant and
had no weight whatever in determining the
verdict. IT slipped into the record because the
witness was loquaciOuS and the counsel for the
defence neglected 10 object 10 II. No attention
was paid to it when the witness was In the
chair. and neither counsel in summing up nor
the Court in charging the jury referred 10 It.
1t escaped observation altogether until the
counsel for the defence, reinforced by Colonel
James. closely scrutinizcl the record In order
10 find flaws in il upon which TO argue for n
certificate Of reasonable doubt. If McKanc
could be kept out Of Sing Sing and admitted
TO bail on SO shallow prctcxi as that scrap
Of hcarSay testimony. The administration Of
criminal law would dcscrvcdly be brought into
contempt Criminal lawyers engaged in des-
perate cases would know what course to pursue
in future practice. Instead OF objecting to in
admissible evidence they would allow it 10
pass unnoticcd. ard after conviction hold the
Court responsible for It's appearance on the
record and demand Il stay Of sentence and
new trial.
Fortunately, Justice Cullen has not allowed
himself to be Influenced by 80 specious n plea.
He sees the y-speck, and declares that it IS
too small 10 be taken into consideration. He
refuses to intervene in The mse, and leaves
Justice Bartlett free TO sign the order for COM
mitmcnt 10 State prison and the Sheriff under
obligation TO execute It.