Evening journal., 1896-03-16
A GENUINE SURPRISE.
Fresh Complications Arise lin
the Farnhurst Case.
BROWN AND SWAN MAY YET WIN

Motion for an Arrest OF Judgment Falls
BY Reason of the Bench Being Equally
Divided Ward and GRAY Throw a
Bomb Which May Result in the Court
Not Sentencing tho Prisoners.
Daniel Brown and John ]. Swan will
not get retrial, but the latest move
made by their attorneys may result In
preventing sentence being passed upon
them and subsequent discharge by ha beas
corpus proct edlngs This strange situation
is brought about by the same equal divl
sion Of the judges Of the Court OF Oyer and
Terminer which has prevailed ever since
David M. NAPLES WAS placed on the
stand
This was the day set for handing down
decision on the motion of Messrs Gray
and Ward for an arrest OF Judgment,
Peter L. Cooper, Jr.. deputy attorney.
general was present for the state
Brown and Swan we're brought into
court shortly after 10 o'clock Miss
Brown accompanied them Quite a
number Of lawyers and spectators were
present
1t was apparent that there was
the same old trouble on the bench with
Chief Justice Lore and Judge Cullen
favoring the motion for an arrest OF
judgment. aud Judges Grubb and Marvel
against It
The chief justice speaking for himself
and Judge Cullen, said that. Ia the first
place, stbe Court Of Oyer and Termlnsr,
was statutory court and had no terms,
being called only when the precept Of the
judges Of the Court OF oyer and Terminer
should issue. That the fact OF the
statutes prescribing that the judges
OF the court should have a discretion
as to whether grand jury
should be summoned especially for this
court, OF allow indictments upon charges
over which the Court OF Oyer and Ter.
miner had jurisdiction to be found in
the Court OF General Sessions and
removed to the Court Of Over and Ter.
miner by certiorsri; and the further pro-
vision under the statutes that when the
Judges In their discretion should
deem it best to summon q grand
Jury for the Court Of Oyer and Terminer,
that the direction for such summons
should be embodied 10 the precept for
the holding of the court.
For these reasons the oral direction Of
the chief justice to the clerk Of the court
to notify the sheriff to summon a grand
Jury was not sufficient The memorandum
which the clerk OF the court had
entered upon the margin Of the precept
OF such oral direction of the chief Justice
was not part of the precept and record
10 the case, and therefore the sum
moning Of the grand jury by
the sheriff was absolutely null
.nn I
Terminsr was sitting without 4 grand
l fore. had been found by the
| eral Sessions and had never
been removed into the Court OF Oyer and
Terminer Therefore the court had no
Jurisdiction In the case, and al the PRO
oeedings had been coran non judice
Judge Grubb. speaking for himself and
Judge Marvel, held that by the practice
Of this state the oral direction OF
the chief justice to the clerk
Of the court instrueting him
to notify the sheriff to summon a grand
Jury was sufficient. Even II that oral
direction was not sufficient, the entry by
the clerk Of the court Of the
memoranda OF that fact upon
the margin OF the record made
IL part Of the precept In any event the
objection to the grand jury was consisted
of mere irregularity In their summoning
and consequently the objection should
have been made upon a motion to quash
the indictment or by a plea In abatement,
and that 1t came too late after the
verdict.
Judge Cullen made forcible statement
In support Of the stAHd taken by Chief
Justice Lore and himself.
The chief justice then announced that
the court being divided, the motion fell,
aud Judge Grubb would pronounce
Judgment
Mr. Gray suggested that it was nsces-
sarp for the state to move for Judgment
and asked II that motion would not fall
If the court were divided
This took Mr.. Cooper by surprise. and
he refused to move for judgment before
consulting Attorney General White.
Consequently the matter was carried
over until Wednesday morning.
Should 1t be decided that a motion for
| judgment must be made and the court be
equally divided on the motion, Brown
and Swan cannot be sentenced aud may,
after adjournment Of the present term,
be released on habsas corpus proceedings.