New-York tribune., 1901-08-30
DIAMOND TO PLEAD TO-DAY
JUSTICE DYKMAN'S STAY CAN ONLY
APPLY TO THE TRIAL WHICH HE
FEARS TO FACE HERE.

Justice Gfegerich in the Supreme Court yester-
day modified the order issued by Justice Dykman
staying all proceedings in the case of Captain
Diamond. indicted by the grand jury for neglect
OF duty, by ruling the stay could not operate
on any part of the proceedings save the trial
Captain Diamond viii plead before Recorder
Gof this morning.
The arguments over the ruling to be applied TO
Justice Dykman's stay were made in the afternoon.
Ex-Judge J. Rider Cady. of counsel for Captain
Diamond. in contending that the stay as granted
should be continued in force. said that Diamond
claimed the right challenge individual members
of the grand jury, but that II denied him. The
evidence given before the grand jury that sub
mitted in the of Wardman Bissert, and there
fore illegal and incompetent. Ex-Judge Cady cited
several authorities 10 show that the evidence was
such could not be used against Captain Dia-
mond, and that portions of it had been obtained
from him a witness in the trial of Bissert. The
case OF Lizzie Borden, who tried for murder
in Massachusetts,, relied on as an instance
where testimony of such character was inadms-
sible.
Captain Diamond listened with intense interest.
"A trial in this city would involve great peril 10
this defendant said his counsel.
Judge Cady said that the District Attorney had
made public statements prejudical to Captain Dia-
mond.
District Attorney Philbin said that there was no
ground for alleging that the could be better
tried in the Supreme Court than in the Court OF
General Sessions. The case presented no novel,
intricate or important questions
Judge Cady." he said. has claimed there is an
unfair distinction between the of a person
brought before a magistrate and one brought
directly before the grand jury; but this grand
jury composed Of men Of integrity and intelligence
indicted this defendant his statements. so
that IL was upon his words the indictment was
found Furthermore. the testimony OF Captain
Diamond in the Bissert was so strong against
him that prosecuting officer of this county. in
the performance of his duty. could have done any
thing else than submit IL 10 the grand jury
think the why this defendant was so care
less when on the witness stand was because his
mind was not concentrated on the evidence he was
giving but on the extraordinary effect 1t was hav-
ing on the audience behind the bar. which repre-
sented the worst element in this community
Here this witness giving this evidence, re-
splendent in the magnihcence OF his uniform. talk
ing 10 the jury in such manner that this audi
ence could go home and tell what he said, and
that he much for the Judge. too much for
the jury and too much for the lawyers. and he
made them all look out for themselves. That was
the why he made in his testimony such
The Indictment. he said was drawn on the same
lines that found some years ago against William
5 Devery now Deputy Commissioner Of the police lice
which was upheld SO that the District Attorney
had the advantage OF valuable precedent
Not only has the defendant now" cried Mr..
Phibin the right 10 select his own counsel. but
the right select his own jury, and he now
tinue TO go on as they are il will be claimed that
he has the right TO select his own prosecuting ON
cer-and l may say that am not very popular at
present"
Justice Giegerich reserved decision the mo-
ton for change OF venue. and there was long
wrangle over the settlement OF his order modify
ing the stay. Counsel for Diamond insisted that
the decision be embodied in a formally drawn
der, giving them twenty-four hours time 10 settle
the order in the Court of General Sessions
The District Attorney and Justice Giegerch
favored forwarding them the Court Of Gen
era Sessions once but the latter. after looking
up the law carefully. acceded 10 the contention OF
Judge Cady.
When Captain Diamond is called to the bar to-
day District Attorney Philbn will insist argu-
ment the motion to inspect the minutes OF the
grand jury. Notice of such motion had been.
made before the stay by Justice Dykman