Year: 1871

the prisoner, and that case on the determination
Of which the safety Of the lives of the citizens 80
much depends could be at once submitted to the
consideration Of o Grand Jury.


As Is Known the prisoner was


PROMPTLY INDICTED
by the Grand Jury and as promptly brought up for
arraignment and trial. and also that plea as TO the
Jurisdiction OF Judge Card0zo who this term pre-
Roes as Oyer and Termlner. was interposed. The
Court granted an adjournment OF o day to enable
counsel to prepare his plea. and yesterday the case
oS the people against Foster was formally called
Tue court room was crowded In every part, while
larger numbers OF very miscellaneous crowd Of
people. the rough element predominaung flied the
mAways and more immediate passages to the court
room.


The Sheriff and several other prominent public
ofHsials occupied seats IN the neighbOrhoOd OF the
bcnch and listened to the proceedings with the
deepest interest The prisoner himself seemed to be
very much cast down. Judge Garvin. the Distrlcs
Attorney, then said: II move II your Honor pleases,
Shat


WILLIAM FOSTER RE PUT TO THE BAR"
The prisoner was then brought forward and took
his stand in front Of the Judge. Mr. Stuart then
began


~ am prepared, II the Court peases, to submit the
special plea for the preparation of which your Honor
was kind enough to afford me the time from yester-





without argument as it may seem fit to your Honor's
Judgment prior to pleading generally TO the lndct-
nents.n


Counsel then read the special plea, which,
stripped OF all It's verbiage may be divided into
three parts:-


Farst-A plea that the instrument called an indict-
nent was made out by grand jury not legally en-
Qanelled inasmuch as Judges Of the Supreme
Court appointed the present term and the Court Of
oyer and Iermlncr and QDDO1nte1 the Honorable
Albert CardOzO Judge OF the latter court he having
by the OF e as % q
Second-Plea that there was no indictment found
ssd sa as # the
called Grand Jury, he being appointed by Judges Of
tne Supreme Court Judge OF the Court of oyer and
gnird-Plea that there is at present no consti-
Honorable Albert Cardozo has been appointed Judge
OF the Court OF Over and Termmer and afterward
appointed Judge OF the General Term.


The plea was signed In trembling hand, civilian
Boster."


Judge stuart put in the following reoinder:-


And the said William Foster says that his said
Contained, in manner and form as the same are
above pleaded and set forth as sufficient in law to
prosecaes for the said people, from further prose.
outing the said Indictment against him, the said
ready to verify and prove the same as the said Court
now here shall direct and award. Therefore, mas
much as The said samuel p Garyin for the n,e said
In any way denied the same, the said william Foster
prays judgment that the said indictment may be
quashed. and shat he may be dismissed and dis
charged therelrom. WILLIAM FOSTER.


DEMURRER TO THE PLEA.


District Attorney Garvin then said that with re-
gard to these special pleas. which he thought were
three in number, as he heard the counsel read
them, he demurred to each and every one OF these
pleas, and said that by Of the facts therein





Judge could In any way quash the indictment
against the prisoner. All that he had to say about
the matter was that he proposed 10 read O simple
motion.


Counsel for prisoner here interrupted and said,
II propose, then, to argue the question"


The Court-Do you wish TO be heard In support OF
these peas9


Counsel-I submit, your Honor, my plea IS q
special pea-a plea on motion to quash and plea
in abatement Your Honor will understand the
character OF the plea. II the case Is to be argued
am prepared to go into it


Judge Cardozo-Mr. Stuart, do you wish 10 sup
port the plcag


Counsei-I Join in the demurrer, and Il desire
70 have your Honor decide upon the question n-
stanter.


TIE PLEA ovERRULED.


Judge Cardozo-As long ago as 1856 the case OF
Court of Appeals, and decided against the present
plea. In that case the question was as TO the right





Termlner while being, ex olicio, member or the
General Term and was held that all his duties as
Judge Of the supreme Court remain and he had
right to exercise all the functions OF the Supreme
Court In the statute as 1t then existed provision
Of the Supreme Court VINO sat as Justices s Of the
Court OF Appeals. In that constitution, as IL now
and as IT stands at present Is that instead OF being
designated to sit In the Court OF Appeals tncy are
designated to sit in the General Term: In both Of
the constitutons-in the same article (thc sxtn in
which provision is made for such disposton-aiter
such provision IT Is expressly declared that any


MAY HOLD SPECIAL TERMS
OF Circuit Courts or Courts OF Oyer and Termincr.
The amendment to the constitution, therefore, mas
not Impaired the applicability OF the have
toned that the statute under which, in accordance
with the constitution, three OF the judges have been
designated to hold the General Term does not at
tempt TO, and. indeed. constuonaly could not pre-
pea must be- @ There o us re he ndrmen
that the prisoner should plead over.
Counsel."Your Honor viii please note the excep-
The prisoner then pleaded, through Judge Stuart,
District Attorney Garvin then sad-Now, your
Honor, IN regard to this case, it is one OF those
which pubic Justice requires should move should
counsel on the other side whether we can agree
upon some day on which they VIII be prepared to
Counsel-I have this to say-for lt is an In
quiry OF importance-that ! am not prepared to
have no doubt--be other counsel connected with
myself, infinitely more able aud better qualified
protect THIS mans iHIeTeSLs ana TgubS tnan can
pretend TO be. In view OF this fact and out of COM
mon respect to counsel who may be supposed to be
yet associated with me, ask ior Difference to no
time / ask your Honor to defer the fixing OF any
time until some further developments are made
Judge Cardozo-I think day must be designated
for the trial Of the case. II you agree between
yourselves, very well; otherwise l shall designate
the day.


Judge STUART would like to hear my learned
friends uhe District Attorney suggestion on that
point.


District Attorney Garvin-I win be ready TO 90 on
with the case at any tlme Tomorrow or
week hence, or ten days, II the counsel on
the otber side desire. do not desire that the
case should DO urged 90 that they will have no OPP
portunty TO be ready. l think pubiic justice re-
quires the case 10 he tried Immediately. The iacts
occurred upon tho island, and witnesses can be
easily obtained. 1t IL in which the interests or
tho prisoner cannot suffer by reason OF q speedy
trial. lsuggest that the case be set down within