Year: 1876

THE MURDER OF JAMES II. NOE.


q NEW TRIAL or JOHN DoLAN DENIED ~ THE


GENERAL TERN OF THE SUPREME COURT


POINTS OF TIE DECIsIoN-THE COURT OF OYER


AND TERMINER TO REsZNTENCE.


John Dolan, the murderer of James II. Noe,
Who was convicted Of murder In the Court Of oyer and
reiner and sentenced to be hanged obtained stay OF
proceedings until the techncates in bis case could De
argued in Supreme Court General Term and this appeal
was argued last week. The main points urged on his be-
half were that both grand and the petit ures which
sassed on his case were illegal, because Douglas Taylor
VAS the legal Commissioner OF Jurors and took no part
In selection OF the lists OF either grand or pot jurors
that the indictment was found in the Court OF Generai
Sessions and transferred 70 the existing instead Oh 10 te
seIt Court Oyer and Termner that the counts oi ING
indictment we're bad for duplcity In charging TWO


mes in one count; and that the verdict oi lhe jury
Vas inconsistent in finding the prisoner guilty OF hOn
,ide while committing q felony, and also finding him
ruilty Of deliberate and premeditated homicide


In long opinion gwen by Judge Daniels, covering 2s
cages of foolseap the Court holds on the question IN
regard TO the Commissioners of Jurors, that something
d the strces legal right must be presented to warrant


decslon which might paralyze the arm Of criminal JUS
Nee that in the selection Grand Jury list the legal
Board was the Mayor the ChoJustces of the Supreme
hperior and Common Pleas Courts, and the Recorder
and City Judge The Commissioner OF Jurors was
merely their clerk and they could select another The


iecton to the mode OF selection OF Grand Jurors was
therefore without effect more important objection
was that the Grand Jurors were not selected from the
ast OF petit Jurors made up by tne Commissioner OF
Jurors that 49, by Douglas Taylor. The difficulty arose
hon the fact that demurrer TO DOlans plea was put
admitting "injudicOusly as 1t would seeh' all lacVs
well alleged in the plea. Judge Daniels thereupoh eA
,mines closely the plea The alleged in it is not that
here were no Jury lists before the Board, hut That
the Board did not make out the Grand Jury lists wholly
nom petit jury lists made out by the proper
Commissioner and the presumption being that the
Board did its duty and selected from some proper Jury
hist the objection must he oyerrued There may nave
been irregularities in the formation of those lists Dut
irregularities in the performance OF ministerial duties
which the great and of the vital interests OF So
Tety dependent is not TO be denied Tor that reason
The Boald did not fail in ITS duty TO select proper per
sons and the prisoner could not have been injured or
preudced by any irreguarty precedent TO thelf acuo
The petit Jury challenge has st less grounds IOf IL s
conceded that the petit jury lists were MADE NY person
setting under color of office Commissioner Of Jurors
and all SUBSEQUENT H. progeednsS "eie "
m rd tn The transfer Of the ease from the Court Of
General sessions tho Court OF oyer aud Iernluer
Judge Daniels holds that the only purpose OF me Legs
ature in allowing such transfer was speeuS @ 'l' %h
with I'm this transfer: but at most there was an llee
arty and avail himself Of il the prisoner should nave
presented il before trial. .


With regard the Indictment, Judge Danlels auuIs
that i'm ne rst two counts OF the indictment a burglary
and robbery are charged well as murder, ana that
the rule is that count should not charge two crimes
bnt this burglary and this robbery merely described
an nfoner form TO SHOW that they were fcones, incl
dents To show that the homicide when 1oOWcd recn1u
the grade of murder and they therefore properly
Included under the statute defining this class OF muT
ders The objection that as two counts charged D4a
with murder in the commission of felony, and the thd
with prpmedirated murder the verdict all three was
Inconsistent is overuled by Judge Daniels on te ground
that the prisoner may have been committing bOth pu
rary and robbery aud when niiictng the mortal wound
may have been actuated bY deliberate and premed
tated purpose take life. At any rate the thd count
h sufficient Only duty LETT to the Court mat
Was to confirm Judgment and remit he case 70 the
Court and Tcrmner to designate the day Tor the
execution and carry the same into effect.


After the rendering OF this decision, a motion was
made by Phelps that the judgment OF
the Court of oyer Termner he made the Judgment
the General Term aud that the record OF the oyer ana
Terniuer be remanded said court with directions 10
6x day for carrying out the sentence Of eAecuu0u
which granted.