Year: 1868

tcresting DiscussiOn--The Trial Postponed


till Tuesday Next.


Before Judge Blatchford.


The United Sldtes rs. 4lrah Bldisdell, J. j. Echel
and Others.-Another hitch was sprung in entering
upon tie trial Of this yesterday which resulted
In Its further postponement till Tuesday next.


In addition to the counsel appearing on the pre-
vious day for the defence were engaged and par.
ticipated in the days proceedings Ira Shafer, L.
d. Mccarthy, Messrs. Knox aud Voorhies; Mr..
Courtney United States District Attorney, and Mr..
ID. X. Phelps, Assistant United States District Attor
ney, appearing for the government. The court room
was well filed by expectant spectators before the
case was called on, and when at last the other bus
ness having been disposed OF, the case was about to
part.


NoLLR PRosEQuI ENTERED.


District Attorney Courtney, addressing the Court,
sad-BefOre jury Is empanelled in this case de-
sire to make motion that ,aoe proseQu be entered
for two OF the deiendents In the case OF James A.
Dissendorf and Isaac s. schuyler two OF the parties
indicted with the defendants Blasde and Eckell.
i make the motion before proceeding with the trial
OF the case although In State courts the practice is
the reverse.


Judge Observation-Disclosures the law and practice of
the United States courts 1t Is held that District At
t0Tney may enter aoile DroseQut with regard TO
defendant before empanelllng jury, The order
shall be entered accordingly.


MOTION TO EMPANEL A JURY.


Mr. Courtney now your Honor, move that
Jury be empaneled to try the case ! win here
make my opening address and propose that the fur
ther hearing of the trial be adjourned till Monday.


Mr.. VOORHEES,, addressing the Court, said that he
appeared for Mr.. Beebe who>was too sick TO attend
as associate counsel for the defence. Under the
circumstances he appeared as counsel In the case.


Mr. T. p M Mccarthy said.Your d. our Honor in conse;
to take part in the defence Of this
had unintentonally carried away with him the copy
OF the indictment that had been served on the de-
Baisae ana IN @ Dotn Mr. Snaier ana
except what they had learned verbally from the
fsndant. He would, therefore, Notwithstanding the
order made by the Court yesterday as to procee ding
with the trial OF the to-day move for short ad
lournment, merely long enough, in iact, to enable
points and questions involved.


The Court shall order the jury to be empanelled
and the case opened now; that will consume the rest
OF the day, ana Shall then adjourn the case till Mon
DAY morning.


NOTION TO SET ASIDE THE vENIRE.


Mr.. Shafer-Your Honor, / have to submit mo-
ton. This venre see Is tested In the name Of the
Chief Justice OF the Supreme Court 1t Is properly
sealed by the seal OF the court and it is properly
signed by the clerk OF the court. But your Honor,
this does not make 1t valid instrument. Ny point
Of objection 49, that being tested in the name Of the
Chief Justice and not by the Judge OF this court the
venire is null and void according to all the rules
and practices OF the court read from the statute
cesses issuing from district court shall bear test of
the Judge OF said court Tor If that office shall be va
can't OF the clerk thereof which said writs and pro-





whence they issue and signed by the clerk thereof.u
Now, your Honor, what we insist on is, that although
the seal or the court Is TO this yenre and although
the name OF the clerk s duly signed to It. yet being
tested by the chief Justice instead OF by the Judge OF
this court II s absolutely null and void. 1t should
have been tested In the name OF your Honor. The
authorities on the point are uniform Counsel then
referred to a leading case in support OF his argu-
ment.) In this case, criminal action, although the
party was convicted yet judgment was arrested and
new trial granted to the defendant. The syllabns
says "a paper purporting to be q yenire.n This
Ven1re being patpd Chief m NJ
your Honor, the motion i make In fatal
as u the seal OF the court or the signature OF the
Honor might Is well try these defendants by twelve
arbitrarily chosen men, or py twelve referees, and
and all concerned in 1t would be trespassers This
mas been held In well known case list Richards
feportsl q case In which the clerks name
not .hs how e epror e aa e m t Instance
nave nav se.1 eHpla,ned a uee it. tn : 'A w ' %


M. Courtney-your Honor, In reference to the
objection tai taken ey 70 se Validity or tine
OF the sections OF the United States statutes,
tnorlzing ana empowering the empaneling and
States courts the rule heretofore in existence in the
Circuit Court was vacated and new rule under that
section OF the statute was substituted and 1t would
seem that this venire was drawn under that new
rule Of the court; 1t appears to be signed by the
clerk OF the District Court and Circuit Court sub
NIT, therefore, your Honor that the power given to
the court under that section Of the statute Is sum-
Client to maintain the validity OF this venire.


N


Mr.. Courtney-To rule made by the Court


Mr. Shafer-l am not aware OF any rule OF court
oyerrang q sta sate nnow noWeye h Wnat conn
question any rule made under recent statute. This
Is question to the test Of the wrIt and the valid
tty OF the writ The point here is as to the process
OF the writ; II 1t had not been tested at all Ii
the test and the seal Of the had been entirely
omitted for 1t cannot be said that test in the name
OF the Chief Justice instead OF the test OF the Judge
of the District Court before whom these defendants
are to be tried Is any test at ALL In other words 1t
40 writ ara tiul ff1t t1,o
validity OF writ. First, the writ must be tested
second, 1t must bear the seal Of the court and,
highest evidence the authenticity of the writ be-
cause in the theory OF the law the writ issued in
the name OF the judge by whom 1t IS tested; To say
that the Chief Justice issue writ In this court
il untenable to say your Honor could test writ
issued from the supreme Court OF the United States


The Court-liow do you bring up the question:


Mr.. Shafer-t bringit up on motion in pursuance
Of the authority have quotedon the freguarity OF
the issue Of the venire to summon petit jury such
a motion as this must be presented before ine jury
is sworn. IL ID not an objection against the array
II Is special motion as In the case OF Brown against
venre. The writ OF venire by which grand or petit
jury summoned parts OF the record Of the
defective 1t is null and Judgment must be arrested


The Court-Ths is very small point and one
which could be OF no sort OF avail on motion for
new trial, or on motion for arrest of
judgment. The objection is purely techni-
CAL, and can only be nterposed for the pur
pose Of DELAY, and, therefore, Ia not worthy the
slightest amount VI consideration. The power or the
court In oruerng the empanelling OF jury. In the
courts Of the United states has been extended by
riom rules. The last rule on the subject was one
made last November, providing the mode Of sum-
moning and drawing jury The rule provides that
the clerk OF the court shall draw Jury by lot ac-
c0rng to the statute law OF the United Statcs-that


list Of the shall be attached to the writ OF
vcnire issued to the marshal summonlng the Jury.


appears that the venre here Issued to the marshal
has the list attached and In all respects the practice
has been followed IL has the seal Of the court to 1t
and the signature OF the clerk, and in oil respects
appears 10 be regular, except IN the matter Of the
test ii having the OF the Chief Justice to II
stead Of that OF the District Judge. How that thing
crcpt IN here do not know. II appears to be q
printed form-the words Disrict Court Clerkr of the
bottom printed. and the test by "Chief Justice"
also printed. Every one knows that in the District
Court processes arc tested by the District Judge,
the name OF the Chief Justice. This has been
always the practice since the passing Of the act Of
1892. Under the laws OF the state Of New York
and the statutes OF the state OF New York
the validity OF verdict shall not be affected by
mere omission OF the clerk Of O court unless where
the party shall be prejudlced thereby. That is the