Year: 1873

Judge Davis on the application OF the counsel for
Edward s. Stokes for writ Of error and stay of
proceedings. Public opinion In view OF Judge
Boardman's adverse ruling on the bill of excep-
tl0ns, was that Judge Davis would not grant the
application for the stay, but, luckily for the prs-
oner that opinion was at fault, and the evil day
should 1t ever again appear On the calendar for
Stokes in connection with his conviction and sen.
tence-is at all events, STAYED of an indefinite
period The Supreme Court, Chambers was crowded
throughout the day. the crowd anxiousy expectant
OF the result Of Judge Davis consideration Of the
application. 1t was after two O'Clock when Judge
Davis took his seat the BENCH and with his en-
trance followed rush from the halls and corridors
that instantly filled the r0Om His attention
was at first called to case OF habeas corpus in
which q young couple claiming to be man and
wife sought the protection Of the Court the young
woman having by illegal process been confined in
the House OF the Good Shepherd by Justice Bixby.
The Court learning from the lips or the young man
himself that the lady In question was his wife, said
he had nothing to do but accept the assurance and
st peace with themselves and ali the world '''''


OPINION GRANTING THE STAY.


Judge Davis then proceeded to deliver his opinion,
which, he said was arrived at after great deal OF
earnest examination of the points raised
lowance Of writ of error IN the stay Of proceedings
upon the Judgment Mr.. Tremain for the prisoner;





1t was suggested by the respective COUNSEL
when the motion was submitted, that It's con-
sderaton should be delayed till the decision OF
the motion for new trial then pending before
Judge Boardman. That motion having been de-
cded adversely to the prisoner, 1t becomes my
duty to dispose OF the present one. In doing so,
exclude from consideration the aff1davts used on
the motion for the new trial and all the questions
properly before me- have We not not consiaeTed M G % the
questions made by the exceptions taken upon the
preliminary trial Of the pleas in abatement, but
m IN yh hinh in
the bill OF exceptions made upon the trial OF the
indictment. The application to me is


FOR A WRIT OF ERROR


to bring the judgment record and the bill Of excep
tiOns before the General Term of the Supreme Court
for review. Judgment having been pronounced In
prisoner and 1t is apparent that to grant the writ
without an order expressly staying mis- execution
which should govern the Judge in determining
motion OF this Kind has loug been clearly settled.
How. Pr Rep 151) :-"When, on an examination Of
q bill OF exceptions upon an application tor stay
the Judge has grave doubts sc Of the S OF
in the exercise OF the discretion with which he Is
clothed, to allow the writ and stay the execution"
Edmunds, In q case tried before himself, declared
1t to be his duty to allow the writ and stay the
he felt no doubt, but upon which appellant tr
bunal had passed; and in The People vs. Hendrick-
determining the question whether the prisoner
shall have an opportunity for review by the
supreme Court Of the exceptions taken. am not
necessarily called upon to arrive at position con-
elusive that the Court erred as to the law. 1t Is
enough that there Is an exception in the case
which deem not to be frivolous and which in
wolves graveiy important question, respecting
which there may be even q conflict OF authority.
but which remains unsettled by the Courts OF the
State" Ana in the very late case of Foster
against the People, the Court OF Appeals, while
unanimously Affirming the conviction, do not hesi-
tate to say that the case was one eminently ft
to be reviewed, and which properly called for the
allowance OF the writs and stays of execution that
uynr aatnh hu fhn roI IVhsr hall hn
rule dcducibe from these cases Is briefly this:-
"That whenever the Judge to whom such an appli-
tions raised upon the trial, and which may have
affected the result adversely to the prisoner, to be
from their not having been settled by the higher
Courts or because OF conflicting authorities touch
ing them. that in his Judgment they are worthy of
the solemn deliberations OF an appellate tribunal. IL
is his duty to accQId to the prisoner the oppOrtu-
nifty to present them Tor review, and in such
the duty should be discharged In view OF the ir-
remediable consequences that may follow his
fusal. The exceptions taken upon the trial OF this
case are numerous. The great majority of them


FRIVOLOUS OR OF sUcH SLIGHT IMPORTANCE


that they cannot be regarded as having preJudiced
the prisoner. But, in opinion, they ore not all
OF that description Some OF the exceptions to the
rulings on receiving and excluding evidence will,
think, deservesattentive consideration upon argu-
ment l cannot here consider them in detail. The
exception upon which | have the gravest doubts
model OF clearness and general correctness, laid
down to the jury IN the following rule or law:-Tne
aSs x IN he atx Of h
to satisfy you that 1t murder which the law
wolld imply from the TACT OF the killing under the
circumstances, In the absence Of explanation that 1t
was mansaughter IN the third degree or justifiabe
homicide. Because, as have said, the fact OF killing
being conceded, and the law implying malice from
the circumstances ofthe case, the prosecutions
Is fully and entirely made OUT and, therefore, you
can have no reasonable doubt as TO that unless the
prisoner shall give evidence suffcient to satisfy
you that 1t lustlnable under the circumstances
Of the case" This was perhaps clear and correct
ny n nf
homicide by violence, and with a deadly weapon;
but Is not Its correctness open to serious doubts
Its several deRreesY The Indictment was Tor muir
der in the first degree. The Court and the counsel
Tor botn sides cOnCurred that the offence either
murder in the first degree or manslaughser In the
third degree or justiiable homicide The killing
by fatal shot from q pistol fred b, the prisoner
have been In substance, that from this
conceded fact and the circumstances attend
out the of the prosecution ''Iully and en-
tirely,' unless the prisoner gave evidence sufll-
slaughter or justinable homicide. In wilson VS..
People Parker 6lol, Judge Wright an eminent
Similar charge, eject OF our statute IS
to explode the whole common law doctrine OF i'm
piled malice. Either OF the cases put to the jury
Lacte murder, for malice would have been
Implied from the act itself, and the burden
Of the offence to mansaughter would have been
shifted upon the accused: but under our statute
announcer lngreulent was Wanteu 10 constitute the
crime OF murder.viz., an actual intention OF the
innicton OF the blow to Kill. 1t is true the Jury
would be at liberty to infer this intention in a
proper from the act ITSELF upon
the salutary rule Of the common law, that
man Is held to intend that which
In the ordinary course OF things would be the
natural result of his acts but no legal implication
OF ielonious intention can now arise so as to
throw upon the accused the burden of explaining
the innocence OF the transaction or reducing the
offence to manslaughter.". TO the same effect was
the charge OF Jadge Edmunds in the case OF The
~ n.A fn
People VS.. White ga Wend., SOY, and from the
opinions had IN the Court oil Errors ths conclusion
Is reached that express malice" muss be proved
or the prisoner cannot be convicted under sn IN
dictment charging premeditated design to effect
death, understanding the charge oi the learned
Judge to have declared as legal proposi-
ton that the law implies the malice
rom the killing and the circumstances OF
the case, that the charges M Jne ln
dlctmnn1 txcrn ruIIr and untrulX made ont. nnless