New-York tribune., 1901-12-04
mn PLEA FOR SCANNELL
.-o>STITTTIONALITY OF NOVEMBER
rpavD JURY URGED &C. O'D.
rSELIN'S WITHDRAWAL.

,,oS,,on as TO the legality of the indict-
~" end in The county OF New-York by the
&c Grand iury in view OF the charge that
~ 2 sanger one of the jurymen, is not a
'Deso,+ Of New-York County, but is a resident
-.-cbester County, was brought to the at
-, If Recorder Goff yesterday. when the
~- ~ Fire Commissioner John ]. Scannell and
.Iend William L. Marks We're called. Scan
",s,d Marks were indicted first few months
and the indictment was dismissed on the
H"5 that a lawyer who was not member
district Attorneys staff allowed to
| the evidence to the grand jury. The in
-.rnsnt was found again by the November
iury. and il charges Scannel and Marks
| 90 ,ouspiracy. Evidence was submitted TO
N''A .hst supplies for the Fire Department We're
stossd through Marks and that merchants
= ,onufa cturers who did not arrange to paw
sna l. COMMISSIONS to Marks were unable to Sc
Ssse 70 the Fire Department.
se-Tancey Nicoll, John ID. Lindsay and George
.s1n Battle the lawyers representing Scan
~ surprised the regular practitioners in the
- ~ Special Sessions by the manner in
~ they raised the question Of the illegality
hDbs indictment yesterday. Mr.. Lindsay, on
sLaIf of Scannell. filed what was termed plea
abatement-" This is a common law method
I.++acking the constitutionality of the grand
- II was accompanied by an affidavit al
~ .ha- the November grand jury il
saiiy ssIis constituted. and relating the circum-
80 of the residence of Mr.. Sanger The
20 was entered so as 10 cover each OF the in
20 l.easnrs against Scannell and Marks.
,Ssistant District Attorney Ordway objected
ne acceptance Of the plea. He said that no
ea olea WAS provided by the Criminal Code.
"a that the plea should he declared null and
- He asserted that the code provided for
rec Meas anC only three-''Not guilty.
.-,lt,,' and former judgment of conviction.
Mr. Lindsay said that the plea was provided
.,r in law as a means of determining whether
-r4r,a nF- H.
.i,ufed - tribunal. The facts in the case, if
-rre5 true would undoubtedly Vitiate the in
.;..-nents He suggested to the court that the
-roner method Of procedure on the part of the
Tn,strict Attorney was to traverse the plea or
"a demur and raise the question OF consutu-
donality.
. oronerly interposed. He said il was not good as
matter Of law. even If il was good as a mat
tsr of fact and inversely it was not good as
smatter Of fact, even if it was good as matter
Of law.
rsnt until to-day. to file briefs.
Opinions as TO the proper course OF procedure
-ere not very clear It was believed that If the
Recorder accepted the plea there would nave
10 be trial of the issue as to the legality OF
Mr. sanger's membership IN the grand jury, to
determine the question of fact. Then there
might possibly be motion to Quash the IN
dct,nent if the statements concerning the
gand juror were found TO he true.
Fx-J.dge W. II. X. OIcott was asked whether
:, intended TO interpose q similar plea in the
tsse Of Police Captain Cannon. whom he repre-
ssuts and who was indicted by the November
gand jury. He replied:
T have not seriously considered that point
Il is proba bic. however. that q similar point
viii be raised in Captain Gannons case if 1t
should be found necessary
District Attorney Philbin yesterday expressed
q hope that an investigation would show that
Mr. Sanger had not given up mis- residence in
New-York County and that the charge that
The November grand jury was Illegally con-
ff;Tu
don. He sent word that he wanted to see Mr.;
Sanger. Late yesterday afternoon he received
q reply that Mr.. Sanger, who was at I1archmont,
would be at the District Attorneys office to-day
and make explanation.
Counsel for Scanneu assert that Mr.. Sanger
voted in Westchester last November and in seE-
eral previous elections, ard that he clearly Is
net a resident of the county Of Newly ork- The
November grand jury found 800 indictments
Many of the persons who were indicted
plesded guilty and were sent to prison.
and there can be no reopening of their cases on
the ground Of technical flaws in the indictments
In some Of the cases awaiting trial the question
ot the legality Of the indictments may be raised,
and il may be necessary to have new indict-
menrs
II was learned yesterday that Mr.. Sanger was
not the only nonresident Of New-York County
Vho sar as a member of the November Grand
jury Another was c. O'Donnell Iselin. the
banker Of No. Sc Wall-st-. whose summer home
is in New Rochelle. Westchester County. Mr..
Issln did not sit through the entire term, but
Eas excused from the jury on November II.
stter sitting for eight days. This was admitted
list evening by District Attorney Philbin.
Son after the November jury was drawn, and
be1re the question of indictments against city
eHdais had been placed before that body, Mr..
is1n went to Judge NeWburger. then sitting in
hr of General Sessions. and told him he had
rs.onai feelings against longer sitting because
Ghis residence. Judge New burger required an
ssiavit from him that he paid personal taxes
both counties that he voted in New-Rochelle.
al lived there in the summer. District Attor-
" Philhin was consulted and then Judge New
trger held that 10 all legal intents and pur-
uses Mr Iselin was a resident of Newly York
l0urty and was proper grand juror MT.
telu however was excused before the cases
iganst Fire Commissioner Scannell and Police
captain Cannon were presented to the grand
ary
The records show that Eugene B. Sanger sat
turing the entire term, not being absent single
day.