New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1915-07-29

ment of their arrest.
peach or contradict a witness for the
people.
MIR. Mcintyre and Mr.. Manton make
afidavits to their not knowing at the
time of the last trial about the mat
tiers detailed in the defendants state
ment. The fatal fact is that the de-
PENDANT himself did know about them
at and before both Of his trials.
Deputy Warden Johnson merely
swears to what occurred w6en he took
the afiant Murphy from prison to see
Governor Whitman, and this is OF no
consequence in the view ! take Of the
proposed new evidence offered on this
motion.
LAS to Apelbaum's affidavit, which
related to conversations between hlm-
self. the defendant, Senator Sullivan
and others. It contains nothing OF mo-
ment which was not known to the. de-
PENDANT before his last trial. Further
more, he knew that Apelbaum Knew
about those conversations, and he was
available as witness. Inc law re-
.oujres reasonable diligence on the part
Of the defendant in producing evidence
upon the trial.
Evidence Not Competent.
"Not only is the proffered evidence
open TO the objection mentioned, but
il is for the most part cumulative and
hence insufficient by the express Ian
ruare Of the statute. People VS.. Shea,
16 Mise, I'D .,
al am Of opinion that when subjected
70 the test of the statute and the de-
cisions there is not enough competent
evidence proffered TO have changed the
result had it been received upon the
trial. -.
"Upon the argument and in his
memoranda counsel for the defendant
invokes the inherent power Of the court
10 grant a new trial. | cannot ina
anywhere in the authorities even
suggestion that this court possesses
any such power. On the contrary, as
mas been pointed out, the power IS
granted by statute and must be eX-
ercised in strict compliance with IT..
Peonle VS.. Court of General Sessions,
l12 A. D., 424: affirmed, 1S5 \. y, 5O4.)
In that case Mr.. Justice Clarke said:
"Tn People VS.. Glen (173 y. y, $3.50,
Judge Werner, in discussing Section SO
of the Code of Criminal Procedure reg
Mating motions to set aside indict-
ments. referred to the fact that from
time immemorial common law courts
had 0uashed indictments, on motion,
for defects in form and other lrregu-
larities. but added: "Such matters are
now regulated by the provisions OF the
Code of Criminal Procedure, and now
ever inconvenient, or even oppressive,
they may appear to be in specific cases,
the courts must apply them as best they
can, for they embOdy the commands OF
the law making power in matters where
in its fiat is supreme and hnai. we
have. then, the authority OF the Court
of Appeals that prior TO the statue
there existed no power IN the court 10
grant a new trial on the merits AFTER
of a felony for any reason
and that now the statute is imperative
and controlling on all matters OF crim-
inal procedure C.
"Defendant's counsel cites the Spe-
cal Term case OF People vs.. Benh"hl
$50 Wise. 400 as precedent. But IN
that case the evidence offered upon the
motion for a new trial was actually
newly discovered in the sense that what
it tended to prove had never Deeh NELL
toned upon the trial
Benham Case Different
"Here the facts sought to be shown,
for the most part, had been htlgateu
and the proffered evidence IS merely
cumulative. The resemblance between
the Benham motion and this is that
tho defendant there as mere had knowi-
edge of the facts sought TO be proved
at the time of the trial and was not
permitted by his lawyers TO testify
concerning them. But II appears that
there was new evidence, aside from that
of the defendants, which WARRANTED
the granting Of the motion.
AT page 457 the court says that IN
view o. the other important evidence
which has been discovered since the
trial, this application should not pc
denied for the reason that the tesIl-
monv which the defendant can give
was known to himself and his attorney
at the time of the trial
"That is true on this application
also. but the trouble Is that there IS
not such important evidence, aSloe
from that proNered by the defendant
personally, which would warrant the
granting Of the motion; and, as haVs
studied the authorities and eXamineu
the atiidavltS, the CONVICTION mas si.,J
upon me that il could not be gfahteu
without disregarding the law ana at
tempting to usurp the functions OF an
other department of government.
"The motion is therefore denied.
Justice Ford, answering the question
OF what effect the decision IN inc
ham case had on him, replied:
THE Benham case contained some
features similar to this, but III INC
main points is dissimilar.
Ford Early 10 Work.
rrs+ice Ford reached his chambers
-, ~ I;rteertb floor Of the Emigrant
Bank Building at 9 o'clock YESTERDAY
morning. He had left them for ms
home less than seven hours before.
For an hour he turned his attention
again 20 the Becker case. Then at ~
o'clock, he went 20 his courtroom 80
Part !. Special Term, TO dispose % q