Year: 1872

The Motion for q Stay OF Proceedings


Denied-Thc Melton To BE Presented


Before Another Judge-Ltttle Hope for


ROgers-Appca To BE Made to the Gov.


crnOr.


On Saturday last as win be remembered, there
was lengthy argument before Judge Fancher, in
Supreme Court Chambers, upon an application for
stay of proceedings in the case of Henry Rogers,
convicted in Kings county of the murder of Oncer
DonOhue, OF the Brooklyn police, and sentenced to
be hanged on next Friday The Judge yesterday
gave bis decision in the case. He denies the appli-
cation, and as will be seen in the abstract given
below OF his opinion, fully sustains the rulings and
charge Of Judge Gilbert, before whom Rogers was
tried. -''g--s. -..v.1.-. .....


ABSTRACT OF the OPINION


After briefly stating the facts OF the case, In
GLIDING the statement that unless writ Of error be
allowed the prisoner cannot live until review Of
the several questions raised on the trial shall be
had before the General Term OF the Supreme Court,
he says that writ OF error is not right in such
case. This, he proceeds to say, can only be allowed
upon notice to the Attorney General or to the Dis
srlct Attorney o. the county where the conviction
there does not appear probable error sufficient to
induce an Appellate Court to review the Judgment
the writ should be refused. At the same time
according to practice any Justice OF the Supreme
Court may allow the writ, and without regard to
the fact that an application for it has been denied
by another Justice of the Court. He had been
called upon to perform an unpleasant duty, but
for all this the merits OF the application must be
examined. 1t had been said by Chancellor Wal
worth and other learned judges that before allow
ing writ OF error the judge should be satisfied
occurred on the trial sufficient to induce the Appel
late Court to reverse the judgment After this preface
he took the grounds OF error seriatm. AS to the in
tent OF the Legislature in allowing person accused
OF crime to be witness in his own behalf he could
find no substantial error In the charge OF Judge
Gilbert All the Judge told the jury was that it
privilege
their version OF the facts, and that it was for the
Jury to say what credence should be given to the
statement. This was held to be the intent OF the
Legislature Regarding the intention Of Rogers
when he struck the blow Judge Gilbert charged that
through process OF ratlocnaton on the subject,
but it was enough that he intended to inlict the
blow and that 1t resulted in death. He held that
the Judges charge In this regard fully corresponds
with the tenor OF many decisions touching the


QUESTION OF FERMENTATION.


He could not see how the Judge could have charged
on this point moro appropriately than he did. AS
to the alleged intoxicatiOn OF Rogers, he held that
there was abundant evidence to show that the
mind of the prisoner at the time OF the homicide
was neither destroyed nor eclipsed by intoXication
He reviews the facts OF the homicide including the
hand for DOnohoe and his threats to ''ay him out"
and holds that on these facts and on the version OF
his own conduct, as given by the prisoner himself
there was no room for the Judge to give more
- o'''oe THE PRISONERS rNrox1cArIoN


or the effect of 1t or his intent than he did. The
next point considered was the alleged error OF
Judge Gilbert in characterizng the homicide as an
atrOciOus and unprovOked murder. He held that
this was only the opinion Of the Judge, guarded
and qualified by the remark that the jury were to
determine, and not the Court, whether the case was
QUE of unprovoked and atrocious murder. He de-
clared further that Judge Gilbert, with great clear
ness and precision instructed the jury what con-
stituted the crime OF murder In the first degree
and what were the distinguishing elements OF the
crime OF manslaughter. After upholding Judge
Gilbert upon the point of Rogers being guilty OF
murder, although aided by others in the murderous
assault, he takes up the subject of the


REQUESTS TO CHANGE.


He holds that all the substantial points of the prop
ositions covered in the charge. He also fails to
find thing in the objections to the rulings OF
the Court respecting the evidence which, in his
| Judgment should inouce an Appellate Court to re-
verse the conviction. He says in conclusion that
| 1t would be reprOach to the administration oil
justice If such an enormous crime should not be
avenged-an offence against God and man. Rogers
had been found guilty OF murder. The impending
punishment Of the law should not be stayed. He
saw no ground for believing an Appellate Court
would grant new trial. and, terrible as were the
consequences to the prisoner, he could not grant
the application for stay.


This morning counsel for the prisoner (Rogers)
Will be granted a hearing by Governor Hoffman at
the Clarendon Hotel, when such representations
will be made In the case may be best considered
worthy OF the Governors consideration Tor a re-
commendation to the courts for a new trial in the
case.