The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-07-29
MACK THORN TRIAL HERE.
JUDGE NEWBURGER OVERRUJE S
THE DEMURRER LNTERPOSED.

Heids That Gieidsensuppe's Murder was Com-
Hitted Partly Hero ana Partly in ouecns
Caunty-The Prisoners TO Plead To-day
lErN Mack Makes q Friend In the Tomhs.
Judge Newburgcr of tho Court of General
gessiors handed down q decision yesterday
ovorruling tho demurrer interposed by the
lawyers for the defence In the case OF the kill
ing OF William Gieldsensuppo. The demurrer
was based on four specific R~rounds-irst, a
technical objection that the indictment did not
conform to the requirements Of sections 275 and
276 Of tho Criminal Code; second, that moro
than one crime ia charged In the Indictment;
third. that the facts stated in the indictment
do not constitute q crime, and fourth, that tho
offme cot forth in the Indictment was COM
mitted IN Queens county and not in Now York,
and was not therefore within the jurisdiction
OF the Court Of General Sessions In and for tho
county Of New York.
In his decision Judge Newburger said that
the indictment charged the defendantsw with the
orimo Of murder In tho first degree, commit
ted partly in the county of New York and
partly in tho county of Queens, the defendants
having c~onspired to murder Gieldscnsuppo In
the county Of Queens, but, having formed the
conspiracy, elaborated upon tho murder. and
planned its execution in tho county Of New
York, from which county they lured tho vic
tim into tho town Of Newtown, Queens county.
Judge Nov burger dismissed tho first conten-
ton In tho demurrer In q word. As to tho
other three, he said in part:
"As to the second objection raised by the do
murrcr, that moro than ono crime Is charged
In tho Indictment, namely, conspiracy and muir
der. tho courts Of this State have repeatedly
hold that where an indictment contains differ
emit counts, each of which technically describes
n different offence, but 1t is apparent from the
general tenor Of tho indictment that zach
count relates to the Same transaction, and that
the Introduction of separate counts Is not for
tho purpose Of proving distinct offences, and
where, as In this case, the acts Of conspiracy
werc manifestly initiatory to and were merged
such an indictment is good. 1t has also been
held that where there is a conspiracy to COM
NIT q felony and such crimo 10 subsequently
cc pursuant to tho conspiracy, the
conspiracy merges In the felony, SO as TO pre-
vent a prosecution for the conspiracy itself as
1874 Of the Code of Criminal Procedure pro-
one county and partly in another, or the acts
Or effects thereof, constituting or requisite to
or more, counties. the Jurisdiction Is in either
that the Indictment shows upon its face that
tho crime was committed In Newtown, Queens
county. The elements. necessary to constitute
murder are premeditation, elaboration, and in
tent to kill. Tho premediation and deliberation
in this case unquestionably occurred in the
city and county Of New York, the intention to
hll was formed In the minds of these defend
anita. If at all. in the city and county Of New
sensuppe occurred In the city and county Of
New York. Therefore, the crime was partly
committed in this city and county.
1T Is therefore clear, from the reading Of
tho Indictment, that this court has 3urlsdic.
ton of the defendants, and that the Indictment
therefore, be oyerruled. with leave to the defend
ants to plead"
Justice Newburger, after reading his de-
cision, gave notice to the lawyers for the do
PENDANTS that they must present Mr.. Mack
and Thorn for pleading this morning. This was
Lawyer Friend said yesterday: ''The de-
otsion of the court is final and cannot be ap-
pealod from, as the courts power in such q
case Is discretionary. Personally l should
much prefer to try the case here in New York
than In Gu, ems. but I still think the case will
ultimately be tried in Long Island City"
When Lena Won Entrees, the German girl
Who tried to commit suicide recently, was
kaken to tho Tombs she seemed to be extremely
frightened and Mrs. Mack asked her what the
matter was. The girl replied that she had
heard that she was to be put in the same cell
encd. Mrs. Mack ,comforted and soothed her.
and finally revealed her identity. Now the
tho time.
The police let up dredging for Gieldsersuppe's
had clawed the bottom Of every ferry slip and
stirred the mud In the routes OF the boats. work
ing eight hours a day with the police patrol,
three launches, and rowboats. But they did not
got the head; only ropes and anchors and bits of
Iron and clothes of one sort and another. They
worked rain or shine and they were heartily