Evening journal., 1896-03-14
A DECISION RESERVED .
Monday Will Decide the Fate
of Brown and Swan.
ARGUMENT YESTERDAY AFTERNOON


Right OF the Prisoners TO Ba Present
Waived BY Both Sides Question of the
sumclency ofa Verbal Order Dic cussed
aud Jurisdiction OF the Capital Court
Argued.
The Court Of Oyer and Terminer de
voted yesterday afternoon to argument
on the motion for an arrest OF Judgment
Ia the case Of John j Swanssnd Daniel
Brown, convicted @ killing Leon Pisa at
ths Delaware STA 0 Hospital at Farm
hurst In October 1895 The reasons
filed by Andrew @. Gray and Il. II Ward.
attorneys for the prisoners were printed
In full Ia yesterdays EVENING JOURNAL.
They were. In short, that the Court OF
Oyer and Termlner had no jurisdiction
In the case inasmuch that the men were
indicted In the Court Of General Sessions
aud the indictment never certiorarled to
the Court Of Oyer aud Termlner. In
other words, they were indicted In one
court and tried in another Just as
DouEherty, the murderer Of Ericsson,
now doing life term, was There are
those who believe that. II the Farnhurst
convicts win In the presents proceedings
Dougherty, by waiting until after the
present term adjourns, can secure his
liberty on hsbeas corpus proceedings
After waving the presence OF the
prisoners, argument In behalf OF Brown
aud Swan was opened by Andrew
Gray. he declared that the grand jury
was summoned for the Court Of General
Ses slons and not for the Court OF Oyer
and Terminer. The indictment WAS found
by that Jury and never came properly
before the Court Of Oyer and Terminer.
On the precept issued by the court to the
sheriff for summoning OF the grand jury
no mention was made Of summoning a
grand Jury for the Court OF Oyer and
Terminer, but on the eide Of the paper
was q small memoranda referring 10 the
summoning Of a grand jury for this
court THIS, he declared. was put there
by the clerk Of the peace simply as q re-
mindsr.
Chief Justice Lore-'I personally
directed the summonlng OF grand jurors
for the Court OF Oyer and Termlner. and
the memoranda was made pursuant to
my direction"
Mr.. Gray-"I dc not consider the
verbal order part of;the preoept. Accord
lug to the statute the summons should
be embodied IN the precept"
Attorney General White-"The precept
would be worthless without the signature
Of the court. The memoranda on the
side was an order Of the court, and part
Of the precept. The sheriff summoned
the grand Jurors as directed, and they
had all the power the statute could give
them The precept was as complete as
it could be The usual al,custom WAS followed.
The iail doors would bs opened and many
prisoners released II this precept were
judged irregular. The grand jury In
this case. was drawn properly aud per-
formed its proper functions
Chief Jnstice Lore-''No fault rests on
the attorney general II anyone was
wrong It was the court
The attorney general cited the case Of
John Morshan, in which the attorney
general wanted TO move the case 20 the
Court Of Oyer and Terminer from the
Court Of General Sessions by certiorari
when the judges told him that It was not
necessary.
Mr. Ward-"It has not been the prao
tioe until recently TO call the Court OF
Oyer aud Termlner on the first day OF
the term AS no indictment WAS found
In the Court OF Oyer and Terminer, an
arrest Of judgment Is Ia order In re-
gard 70 following an old practice, that
has nothing to do with the case II is
better to be set right than to go on
In the wrong"
As there seemed to be division on the
bench, Judge Grubb inclining TO the opin
ion that the verbal order WAS sufficient
the chief justice announced Monday
morning as the time for rendering q
decision.