The Birmingham age-herald., 1905-10-28
HILL WILL FIGHT ID SAVE PATRICK Court of Appeals Denies the
 Rehearing MAY GO STILL HIGHER Former Senator Thinks Judge Gray Is Not Eligible to Pass on the
 Case, His Son Being
 Interested.
MAY GO STILL HIGHER

Albany. N. T.. October 27.--The court of appeals today denied the motion for re- argument of the appeal of Albert T. Pat rick from conviction of murder in the first degree and sentence of death for the killing in 1900. of William Rice, an aged millionaire ol New York city. The motion was made october by former United States Senator David B. Hill.
 The decision apparently deprives Pat rick of his last hope of interference so far as the courts of this state are concerned with the exception of the death sentence first passed upon him in March, 1902. The court of appeals within a few days will assign a new date for the execution or the original sentence
 Whether Senator Hill will attempt to or can carry the case to the United States courts on appeal, remains to be seeh' Failing in that, Patricl1s only hope Will lie with executive clemency at the hanos of Governor Higgins.
 Senator Hill when told of the adverse decision, refused to discuss 1t, or 10 say what further action, If any, would be taken in Patrick's behalf, until he (liilD had had time to consider the opinion in the case.
 One of the points raised by Senator Hil in his motion for a reargument or the appeal was the propriety of Judge clin- ton Gray of the court of appeals sitting in the case. in view of the fact that his son. Henry G. Gray, had participated as the district attorney In the prosecution of Patrick in New York city.
 For Judoe Gray to Decide.
 The opinion of the court holds that the propriety of Judge Grays sittlng Tn the case was for him alone to decide. ne opinion adds that many and great judges have allowed their relatives to prac,ice before them; others have declined to near cases in which near relatives appeared as counsel but this court has never heard of a judge refusing to sit in case be- cause at some earlier period his relative had taken part in the legal proceedings in the case.
 If any objection was entertained to Judge Gray's participation in the nearing of this appeal, 1t should have been inaoe al the commencement of the argument, when the court declares if he had sought the counsel of his associates, they should have advised him that 1t was his duty to sit. counsels should not have awaited Judge Gray's action and finding that ac- ton unfavorable, now make the objection.
 Senator Hill announced tonight that he hoped to carry the Albert T. Patrick case to the United States supreme court and he incidentally reiterated his opinion as to the propriety of Judge Gray sitting Tn the case His statement follows
 Take Case Still Higher.
 Possibly I ought not to feel dlsap- pointed that the court of appeals has denied A motion for a re-argument of ~1Df granted one motion for a re-argument in either a civil or criminal case In five years. The court still stands four for an afirma- ton of the conviction, including the vote of Judge Gray to three for a reversal Of a conviction.
 with all due respect to the learned court of apepals l still insist that Judge Gray was disqualified from sitting in the Patrick case, and that our objection to his sitting was duly and reasonably talk en- Whether Judge Gray's son paruci- pated in the preparation Of the appeal. neither the court nor defendants counsel are presumed to have any actual knowl- edge as that work Is done in the dis- trict attorneys office. and not in open court, and 1t makes no difference what the question of legality or propriety pre- sented but the fact remains that he was and still is deputy assistant attorney and appeared in the case against the de- fendant in the motion for new trial for newly discovered evidence.
 "The fact. If it be true that many and great judges have allowed their relatives to practive before them in the past. does not make the practice any the less un- justifable. either in law or otherwise. These and numerous federal questions in volvel in this remarkable case, the de- fense hope to present to the supreme court of the United States for final deei- sion"