Year: 1876

convicted Of the murder of James H. Noe Mr.
William r. Howe appeared behalf OF Dolan and
District Attorney Phelps behalf of the People The
facts Of the case too well known to require any
repetition. In addition to the points raised by Mr.
Howe on the various applications for stay Of proceed
ings three new points were raised. Tho first point
raised that the first in the indictmen,
are duplcity; that in the first count there arc
Two distinct offences charged, the FIRST paragraph
tanning all the necessary avermcnts of indictment


for burglary In the third degree and the remaining par
agraph charging the offence OF mansaughter
in the FIRST degree. II was insisted that the
crime therein charged is murder at com
law, but not murder within the
provisions Of the statute existing, while under
that count the defendant, it claimed could have
been convicted of two distinct onencesof burglary in
the third degree and mansaughter in the first degree
and the conviction for either OF these two offences
would have been good and would be sustained by the
Court 1t contGndcd that the defendant could not
at the time and upon the same Indictment be
tried and convicted OF both these offences for the
reason that they separate and distinct feonies OF
different grades and to winch different penalties are az
tached This objection, II was further urged, applies
TO the second count INC next point was that me
only authority Courts of Sessions have TO send


indictments 10 Courts OF oyer and TeTminer is found


in the third Revised Statutes, dth edition, page $685.


sections and 7, which provide that 1.-THE several
Courts Of Sessions shall send all indictments Tor o.


fences rlable therein to the next Court OF oyer
and Termner and jail delivery 10 be held IN their re-
specye Counties then be determined according TO


law. " II urged that this section only authorizes
Courts OF General Sessions order indictment be
sent the Court OF oyer and Termmer, and that
the Court OF oyer and Terminer which tried the plain
iii In error was not the 'next but was the .'same
term" which was in existence when the Indictment in
the bar ordered into the Court Of Oyer and
Terminer The third new point was that the jury
found the plaintiff in error guilty OF murder In the first
degree; that there two counts in the indictment
which purpored charge him with murder in the first
degree while in the act of committing felony; and
other count charging HIM with murder in the first degree
from deliberate and prcmetated design TO effect
DEATH that the people relied upon the two irs counts
and that II TO those that the minds OF the jury
mainly directed. Under this point 1t sub
mtted that general verdict of guilty of murder in
The first degree, charged in the Indictment would
not be good TO those counts for the reason that
under the latter count In the Indictment the jury IN
finding verdict hereupon in the first degree would
necessarily have to find that the killing was with dc.
lberate and premeditated design ,e effect death while
under the two former counts they could not nd but
would necessarily have TO lnd that such killing
done without deliberate and premcditatcd
design to effect DEATH but that the same
ihe act OF committing some other felony. The facts
and circumstances charged In tho two former counts
can be rendered upon either It was claimed are incom
patbe with those In the latter count and they cannot
be harmonzed by verdict and that when the offence OF
murder is charged in an indictment rs having been
done from deliberate and premedated design TO
effect DEATH and also who in the commission OF come
oiier irony verdict of guilty based upon either
count cannot be general but special verdict must be
found finding and expressing the facts upon which 1t
is founded In connection with his argument Mr.
Howe submitted bill of EXCEPTIONS the same being
brought into court by an alias writ OF error.


Mr.. Phelps made an extended argument in reply slso
substantially recaptuatng the points raised At the
prior argument of the He insisted that the bill Of
exceptions Irregular having been sealed alter the
expiration OF the term against the protest of the Dis
trct Attorney and that therefore ought not TO be
sidered upon this argument IL the bill Of exceptions
is TO be considered presents, he insisted, but two
questions In the first of the prisoners requests TO
charge nc asked the Court TO instruct the jury that


as matter OF law upon the evidence they should not
convict OF murder in the first degree under the first



the refusal so 10 charge The first count sets out that
the prisoner was engaged In the commission OF
engaged he did wIfully and feloniously kill
and murder against the form OF the statute.
The point raised by the request to be that the
evidence was insufficient TO sustain convection under
the first count 1t is difficult TO see how any
be claimed its refusal There certainly sufficient
evidence to go to the Jury upon the question OF
burglary and also upon that OF homicide. II by
forced construction OF ihe language OF the request is
claimed that II covers an assault upon the pleading in
the first count as not setting out the offence Of murder
in the first degree 1t is equally untenabc The count
nothing about design TO effect death and there
fore equally well pleaded whatever construction may
be given to the language Of the third clause OF the
zion defining murder in the first degree The rule OF
construction applicable TO this case is 10 be found III
the charge Of the Court to which no exception was
TAKEN that If the jury found that the prisoner
gagged in the commission Of felony and while
so engaged killed Mr.. Noe thai enough
and they need make no inquiry as to his
design. AS TO the transfer OF the TO
thc Court OF oyer and Terminer he claimed that the
language OF tho is intended to prompt
trial the oyer ana ieftnlner, court is re-
qurod TO send the TO tho next thais nearest Court
OF oyer Tcrmincr, not the next term but the next
court, rather than TO later one. Therewas nothing
from which this Court Is advised that the Court OF
Oyer ana Termner, 10 which this ca-e was sent,
not the next court after the order The objection Of
any force at any step OF the proceedings should have
been taken at the trial The Court OF oyer and Ter
miner being Of controlling criminal jurisdiction had
abundant authority 10 try this cause whether sent
there by the Sessions removed by order OF JUS
tice OF the Supreme Court without either He in
sisted, in conclusion, that the judgment and con-
victon should be affirmed


Al the close of the argument the Court took the
papers, reserving decision.


THE TWEED CIVIL SUITS.


The jury obtained TO try the one million suit
against Tweed, appeared in court yesterday before
Judge westbrook. The latter briefly addressed them
on their duty jurors and then discharged them until
Monday morning at halfpsst ten O'Clock, when the
trial will begin. The following is list oil the jury =:
John Taylor j. Norton, William T. Douglas Samuel