New-York tribune., 1902-04-12
A NEW TRIAL FOR B1SSERT.
APPELLATE DIVISION HOLDS THAI
ERRORS WERE MADE BY COURT
THE JrrsTfCEs SAY THAT LENA sCHMIDTs
TESTIMONY AGAINST THE WAhDMAN
LACKED CORRoBoRATIoN-


LACKED CORRoBoRATIoN-
The Appellate Division of the Supreme ooui
Yesterday handed down decision granting d
new trial to George Bissert, the former Waru-
man Of the Fifth-st. police station VINO "aS
convicted in August OF bribery and sentenced u
five wears and six months in Sing Sing. For
several months Bissert has been breaking s.oiie
as a member of the prison quarry gang Inc
decision In his case caused great surprise al lhe
District Attorneys office Two proceedings In
Fissert's case had been disposed Of. and II was
believed that the Appellate Division would re
fuse a new trial.
The United States Supreme Court dismissed
the appeal Of Bissert December y. he hau
applied to Judge Lacombe for writ Of habeas
corpus on the ground that the Special Jury
law under which was chosen the jury when
convicted him was unconstitutional Bissert
was then in the Tombs. and the appeal was made
in the hope of keeping him out of Sing sing
pending the decision of the Appellate Division
Of the Supreme Court to which appeal had
been taken.
An application was made to justice of the
Supreme Court in another New-York district
for certificate of reasonable doubt, and argu-
rnent on the application made before Jus
rice Hooker, of Fredonia- The application was
denied Bissert was taken to Sing Sing Prison
on December Z He was convicted of taking
bribe of $500 from Lena Schmidt. keeper of a
den of vice, and promising police protection for
the place. Captain Diamond. commander Of the
precinct, was convicted later of neglect Of duty
and was fined heavily and dismissed from the
force.
The Appellate Division apparently has given a
decision in Bissert's favor, partly on questions
Of law and partly questions of fact To the
FIRST ind
terposed a demurrer, but pending decision the
grand jury found another Indictment. The
second indictment then Endorsed as having
superseded the first, and the case was brought
TO trial the second indictment Bissert 5
counsel moved for a dismissal on the ground
that the grand jury had no jurisdiction or power
to find the second indictment. The Appellate
Division holds that this motion should have
been granted. The defendant" says Justice
Mclaughlin, has obtained vested right TO
the judgment of that tribunal, precisely as he
would have if he had been put trial upon
plea Of not guilty" If the demurrer had been
allowed, the discharge OF the prisoner would
have followed and the judgment would have
been a bar TO another prosecution for the same
offence unless the court had ordered resub-
mission Of the case
The court finds that errors We're committed
in the reception of the evidence in permitting
unauthorized statements by the District At
torney. and in permitting Assistant District
Osborne to make certain remarks to the jury, one
of which was that there mot person with
common sense but who knows that house OF
prostitution cannot exist in NeW-York without
the consent and knowledge of the police. This
remark objected by Mr.. Levy, Bisserr s
counsel The finds that Lena Schmidt
was equally guilty with Bissert in that she
aided and abetted in the commission of the
crime charged and the decision also declares
that her testimony lacked confederation
The court speaking of Mr. Osborne's sum-
ming up, says that the of this "infiamma-
tory" and Incorporate language 10y the As
sistant District Attorney exceeded all bounds
of propriety and was an invasion OF the rights
Of the defendant to a fair trial. and that when
The counsel in the progress of trial INDUCES in
such 'fntemperate" and improper language
il is the duty of the court promptly to rebuke
and check the District Attorney and admonish
the jury to disregard such improper remarks
The court adds that If the judge presiding at the
trial fails in this the censure and criticism of
the Appellate Division equally applicable TO
that Judge as to the District Attorney. The
opinion goes on:
70 he forms Of law and when errors are committed
il Is say that the defendant is guilty
entitled to be tried by jury upon competent and
on deen o foT tst Of the iury ~ Wond be an
invasion Of the defendants constitutional rights
to be tried b. jury OF his peers
Patterson and concurred in by Justice OBrien,
says that while the court committed in
admitting certain evidence. there is not suffi-
cient grounds for the reversal of the judgment
In regard 10 the remarks OF the Assistant Dis
trict Attorney. the dissenting justices do not
think that the "tuuid style and overshot decla-
nation of the District Attorney influenced the
jury" In Justice Patterson's opinion the talk
Of the Assistant District Attorney tended rather
to prejudice the speaker in the eyes of the jury.
R!ssert's counsel declared yesterday that the
convicted man would be taken out of Sing Sing
soon possible, and would demand a speedy
retr1al- Next time shall win. and Bssert
will go free" enc of the lawyers said.
District Attorney Jerome said that he would
examine the decision carefully before deciding
what course TO pursue in the IF the re
rersal OF judgment is questions of law he
said. I'VE carry the the Court OF
Appeals, but If IL is questions of fact we
shall have TO have trial.
IF Bssert is tried again. said member of
the District Attorneys staff, we shall be able
to produce all the witnesses who testified on the
first trial ard much additional testimony of
ralue. A conviction could be obtained much
readily tnan when Bissert was tried be
FORE