Year: 1872




Judge Jasper w. Gilbert, Of the Supreme Court.
Brooklyn, yesterday rendered decision in the case
OF Henry Rogers the convicted murderer OF police
man DOn0hue, denying the application for q writ
OF error and stay OF proceedings. The prisoner
was convicted OF murder in the first degree at the
October Oyer and Terminer, and Judge Gilbert
sentenced him to be hung OIL the 9Th OF December
next. The murder was committed on the 7th Of July
last in the neighb0rh00d known as "Battle Row."
North First street, near Union avenue. E. d., which
was the rendezvous OF gang Ofruflans and thieves
OF which the prisoner was prominent member.
Rogers was defended at the trial by Messrs. L. @.
Davis ana Edison, who were assigned by the Court;
but after the conviction Colonel Spencer was re-
tanned, and on Saturday last made an application
for writ Of error and stay OF proceedings.


WHY JUDGE GILBERT WOULD NOT GRANT THE WRIT


AND STAY.


In his ''opiniOn," which Is quite lengthy one,
Judge Gilbert said that, as the time was so short,
he had, at the solicitation OF counsel for the
prisoner consented to hear the application, not
withstanding no bill Of exception had as yet been
settled, and for that reason the application could
not be regularly made The counsel for the
prisoner were mistaken in supposng that tho
prisoner was entitled to writ OF error as matter
OF right On the contrary the statute expressly
provided that wrts OF error upon Judgment rem
dered on indictment for o capital offence should
not issue unless allowed by one Of the justices Of
the Supreme Court, upon notice given to the
Attorney General or the District Attorney OF the
county where the conviction shall have been
had. The power conferred py statute
to allow writ Of error in capital
case was high judicial power, and the
exercise OF such power depended not upon the
discretion of the Judge but upon the particular
Before
lowing the writ the Judge should be satisfied that
there was probable cause at least to believe
that the Appellate Court would reverse the Judg.
ment. Nor could Judge Gilbert consider any al
legged errors to which no exceptions were taken.
This remark seemed proper, although he had dis
covered no such errors In the case, because the
prisoners counsel in the argument before him
points which, under the rule, could not be sub
ject of review. The first exception urged was as
TO the admission OF the question put to the physi
clan, whether the club with which


THE PRISONER STRUCK THE DECEASED


could by one blow produce &c, the result which he
Gilbert thought that this was clearly competent.
The next exception was as to the question put to
the same ness it quite as likely tn, that tnat
thrown against the skull as that 1t was produced
by The wooda" The Judge held that this question
was properly excluded, as 1t called for an opinion
OF the witness upon a mere probability without
any basis in fact. The next exception was to the
show that at about The time OF the offence, the
prisoner and other parties were in the habit OF
ireanentlng the spot where 1t was % committed at
and. payfully slapping sleepers found near
TO show the want OF premedtation on the part of
the prisoner. This was properly excluded because
II included acts Of parties other than the prisoner
But evidence OF the same acts by the prisoner was
admitted. The prisoners counsel, at the close Of
the charge OF the Court requested the presiding
Judge to charge each OF several propositions sub
ther than it had and the prisoners counsel ex-
cepted. Judge Gilbert said he understood the rule
to be well settled that Judge was not required to
oh fhn n n al 10 fhnnl
propositions, but that 1t was quite sufficient If he
charged substantially upon the legal propositions,
questions involved in the case. Upon a careful
review the Judge said he was


UNABLE TO DISCOVER ANY OMISSION
in this respect Several OF the requests did not
relate to any rule OF law, and asked for particular
comments upon the testimony, and. were very
properly disregarded by the Court 1t was urged
that the Court omitted to call the jury's attention
sufficiently to the distinct characteristics of mur
der and mansaughter. The Judge said that part
OF his charge relating to this subject sub
stantial compliance with the request to charge on


o a0r U e cre eN
murder to manslaughter. Other exceptions were
considered and declared to be untenable.
With reference to the exception taken to the
empanelment OF the last juror His Honor sad:-
On the call Of the Jurors-all having been
several absentees whose. names were not
placed in the box. The eleventh juror
% were Exhausted. The Clerk was then ordered Ito to
call the absentees, which, being done one only was
present He was ordered to take his place in the
jury box, to which an exception was taken. The
juror was challenged for principal cause and to the
favor, and being found qualified took his seat and
error this and ifin any technical sense it could
be 50 considered IT could not have preudiced the
prisoner. There being but one name Mad II been
originally placed In the box, 1t would have been
drawn before when it was in fact called, and 1t
| Ii immaterial which would have happened. To
4 have placed his name In the box when 1t was In
| fact called as an absentee would have been
AN IDLE AND USELESS FORMALITY.
Finally, II IL were probable that any OF the pro-
legged errors bear so little and so remotely upon
the merits OF the case that


NO COURT WOULD BE WARRANTED IN REVERSING THE


JUDGMENT.


To use the language OF the Court OF Appeals
"Whereas in the present case It is apparent and
obvious that the supposed errors did not work
either injury or injustice to the accused they do
arrived at the conclusion that the prisoner was
rightfully and legally convicted, cannot retard
the execution OF the sentence Of the law. Judge
who, from sympathy for the accused or from any
other cause, should do SO would innict an unusti-
fable injury upon the public interests The appli.
cation 49, therefore, denied.


THE LAST RESORT.


representative OF the HERALD met Mr. r. G.
Davis, one OF the prisoners counsel, who stated
Judge OF the Supreme Court Tor writ and stay,
and, in event Of failure there, they will, as
last resort, appeal to Governor HOFFMAN for re-
spite until the case can be argued at General
Term. Mr.. Davis conveyed the intelligence ofJudge
Gilbert's decision to Rogers, atthe Raymond street
Jail. The prisoner was discouraged but had little
to say on the subject.