Year: 1868

Decision ON the Motion to Quash tho CertIo-


rari-The Writ Observation-Disclosures of the


Court.


ALBANY, Jan. 80, 1868.


On the opening of the here this morning Judge
Peckham Immediately after taking his seat announced
his decision the motion argued yesterday to quash
supersede the writ OF certioar granted by Judge
Wees the 23d ult., and the effect OF which
remove the trial OF General W. Cole the indct.
the murder Of L. Harris Hiscock from the Oyer
and Terminer 10 tho Supreme Court


Judge Peckham said that he had considered the mo-
ton, far as he might to quash supersede the writ
of certiorar. Several grounds urged against the
action Of the court in entertaining motion to supersede
quash and among others that it seemed proper
the judge to allow the writ, It not right
in a single Judge again to review the decision. That
was very much more plausible than sound. The prac-
tice Of the court authorized it, and tho quite
uniform for single judge to review upon hearing both
Sides what another judge had dono who had not heard
both parties, as in cases OF attachment injunction and
somo other proceedings. Such cases took place very
frequently. Judge who acts pdrte will always hear
such motions brought to his attention. and II Is
mon to review those cases upon the same papers upon
which the Judge heard them There was, therefore,
ground force n tho position II also urged that
this motion to quash could not be heard at any other
was also without foundation. He though there
were cases deciding tho reverse Of that under
the code he thought 1t was quite clear that this





was also claimed that motion could be made until
the return OF the writ THIS did not apply TO This class
Of cases. Action might DO taken upon writ of certio.
rari II II well founded but altogether he did not
perceive any legal difficulty in disposing OF this case


~ ra hs issuing p this writ The oass was one
OF homicide and the newspapers had commented upon
IL, and they always had and always would DO So a.
long US human nature remained the same. When
homicide of this character had been committed In a
civllzcd land it would be curious If comments were
not made upon II by the press And such comments
| had yet been understood TO bo cause FOR a
change Of place Of trial or Of court These grounds
for the removal OF thus had existed since June
| last They existed in June 80 far as they do now,
and yet at the November term OF the Oyer and Term
ner they prepared for trial full knowledge of these
facs-for the trial OF the case upon iis merits Again
the present term OF this court preparation was made
and yet on this ground IL was sought to remove the
did not strike the Court. Another ground was insisted
uponthat this writ was properly allowed because the
prisoner was ready tor trial. The Court did not
think that that should receive the least consideration in
case of this character Wholly inappropriate in such
an action motion TO put of the the ground
OF not being ready for trial How could judge pare
know OF the propTiey OF putting of thus cases How
could he properly know the Court coud no, believe
that the judge issuing that writ could have given
the case any such consideration. The idea
| Of putting of case on the merits, on
erpor1e application truly novel one and utterly
unat TO he acted upon by judicial olicer, and he


Judge Peckham could not give that portion Of the case
readily heard upon tho proper facts appearing
on papers be presented. He did not know OF any


foundation for the intmatiou that the Justices
on the trial might overrue the presiding Judge. aud
such statements by counsel we're utterly foreign the
merits OF this question THIS party although occupying
previously high position, and, as II appeared had rem
dered eminent services 10 the country must be tried,
hts be disposed Of like that OF any other cii
zen, ard IL seemed to the Court hEt this writ should
superseded, The proper order to that effect was
directed TO be made.


After the Court had rendered this opinion District
Attorney smith and stated that with the permission
OF the Court be would move tomorrow morning that
trial OF the be proceeded WITH and suggested
the opposing counsel the proprety OF appearing with
aidavits at that time to oppose the motion II such
action was contemplated


The Court stated that II had authority to direct
such the part of the counsel for the Defence
but concurred In the suggestion.