Year: 1873




tnc same ACT Wnile ms Eonor might,
as matter OF humanity and charity, treat all
doubt rhat, as matter OF law. q Judgment might be-
pronounced Tor each OF 204 separate offences, the
maximum penalty Ior each being one years i'm
prisonment ana $3.50 line. II HIS Honor should
choose to take the more mercilul view, OF course
the num0er oi penalties would be reduced TO one
hall. or 81 years. Imprisonment and 81 fines. Mr..
Tremain gave long list ofauthorltes TO the coun-
sci Tor the defence for their consideration.


STARTLING MOTION.


Counsel for the defence said that the motion or
Mi. Iremain was per ectly startling. Ihat the
jury should have been kept in ignorance OF the
result OF their verdict, and that they should nave
been kept without any warming was unparalleled


Judge Davis reminded him that Mr.. Tremaln had
announced his Intention.


Counsel ior the de.ence said that he had not
heard 1t TIL this minute. What he had seen i'll The
papers he had supposed 10 be without authority
He thought candor required that the proseeu
cution should have announced their intent. The
counsel Tor the defence had been under the
impression throughout that but one penalty
and on line were possible, aud IRON that down to
the lowest point. some change might have oeen
made had this terrible possibility been presented to
them. The jury had no legal right perhaps TO
consider the result OF their verdict, yet human
nature was not to re entirely controlled by such
rules. POSSIBLY no more could have been done py
counsel, yet they would have DeeL more deeply
impressed with their responsibility. They codld
have broken perhaps, TO their client the iorce Of
the blow and prepared him lor 1t. lie himself
would have been able TO collect his sellposscssion
for the duty now imposed on him.


THE GRAND JURY DISCHARGED.


At this point the Grand Jury came into Court
and handed in batch OF indictments. Their
labors being terminated, they were discharged,
with the thanks VI the Court, after wnlch y re-
cess was taken Till hal-past one O'Clock.


THE MAXIMUM PUNISHMENT


On the reassembllng OF the Court counsel for the
defence resumed He said that the impression the
defence were left under ali through 10y the opening
oil Mr.. Peckham WAS. that the maximum punish
mcnt for the offence charged was one years I'M
prlsonment or $3.50 ine DE reminded the Judge
that when counsel claimed five distinct challenges
under each o the 2o4 counts unless the prosecution
elected one particular offence on which TO ask
verdict, His Honor replied that he understood the
croWding or all these counts into single lndlct-
ment would reduce the penalty to single one.
He admitted incidentally tlat the defence were
under obligations 10 the Court for allowing them
TO take exceptions in the fullest and broadest
forms, and went on to quote other remarks OF
Hs Honor on the first trial. which went to inti-
the Court IN It's entirety. He quoted similar rulings
on the trial just closed. III the course Of his re-
marks he spoke or the argument or Mr. Field at
the last trial as one OF the finest heard In
court or justice, and said he astonlshed at the
ability OF the eXremporaneous and elaborate opin-
ion gwen by His Honor on that argument. me
deence were all OF that opinion; they never heard
liner argument, or an ADLER handling OF the points.
Counsel took occasion here, while speaking OF the
amusing that anomaly that an american
prisoners. Several decisions condemnlng the re-
coyery OF aggregated penalties were here cited.
OF Judge lngraham on the motion TO qnash the
present indictment. Counsel argued that a ver-





consistent with verdict on the fourth, Tor corrup-
ton; one or the other must be the offence.


TIME FOR MERCY PASSED.


Mr. Tremain said If the Jury contented them
selves with general verdict We would be con-
tent with one punishment But with no iptima-
tion that there would be any relaxation OF the de-
mand ior punishment by the counsel for the
government they have brought him in guilty on
each OF 2o4 counts. The question Tor US is the
our duty to ask that Judgment shall be
in conformity with precedent. We have re-
the practice. There Is no reply. Instead comes
plea Tor mercy; but the time Tor mercy is passed,
and now nothing remains but the sentence. lp
any Indictment ior misdemeanor you may set out
as many offences as you please, provided they are
OF the same grade and description. In United
states VS.. O'Calaghan it is held that offences
mitted by substantially the same act may be
united and an act OF Congress provides for uniting
in one indictment under separate counts number
OF offences OF the same character, and the punish
nieted. the only course that must be
on each count, rising up to the maximum or stop.
ping snort at any point where the conscience OF
the agitator, where there was a general verdict
and one judgment, the verdict was set aside, be-
caase there were several counts, some good and
some bad but this Is not the practice in America,
and 1t may be that the government were glad 10
get rid Of The white elephant on their hands, which
OConnell proved TO be. Among the numerous
precedents cited, was one under the Gambling act,
in Arkansas, which, perhaps. ought not to
quote said Mr.. 1remain, .'as we know nothing





lot draw poker. In reference 10 the observations
OF counsel Tor the defence, that they were led by the
Court and prosecuting counsel to expect but one
sentence. The remarks made by the Court re-
lerred to the claim for about 1000 peremptory
challenges, an Interpretation evidently monsirous
But when the case was submitted to the jury what
the prosecution claimed was general verdict. In
the first trial the chaile nges were decided by the
two first jurors accidentally drawn. and the evils
that resulted were so manifest that sst winter the
Legislature took away tnat power from the two
first jurors. The disagreement Of that jury was
a & q victory defence. second
trial they only mad to provide that the avenues to
the Jury box should be guarded, and, thank
without lowering the standard one harris
breadth. And now, II that disagreement shall
pies good and the glory OF the state; II there
any interference with that jury 1t was another
illustration OF the saying that There Is divinity
that Shapes our enls, rough hew them as we wir
and that other saying OF Burns, "The best laid
schemes Of mice and men gang ait a-gley." The
counsel did not expect that crowding all these
offences into one indictment would have such Q
puny result as one sentence. With the bitter
waters OF humiliation around him. said counsel l
have nothing TO say that will be even the pressure
OF a little finger on his loins. The charm is broken
We are not responsible for the results The case
IL one OF not even national, but International in
terest and, thank God the scale, so evenly held,
i now TO turn. and the question, what punishment
shall be meted out may be lett by the counsel for
the prosecution TO the learned and able and I'm
partial Judge. (Appiause1


JUDGE DAVIS REMARKS PREVIOUS TO SENTENCE.


At the conclusion oi the arguments of counsel
Judge Davis sad:--lt would be unmanly oil the
Court TO seek TO evade an apparent conflict be-
tween the views then expressed and those now en-
tertalned, as sheltenng myself under the mantle
OF counsel. | was. on the former trial, under the
impression that there could be but one conviction
and one sentence, and that impression was derived
from the act that the case 10 which reference was
made IN Lne Court OF Appeals had been tried be-
fore Inc on circuit In this CITY, and / then, alter
passing various important questions touching
the right OF the state directed Judgment upon
the several penalties alleged TO have accrued Tor
the purpose or enabling the court above, If it
should pass upon these questions on the same
views wnicb entertained, 10 preserve the rights OF
the parties by directing such a verdict as the
law awarded upon the facts ana the law, without
the necessity ol new trial and therefore granted
Judgment with the understanding that the case
would be presented to the Court OF Appeals That
Court have upheld the opinion OF the Court below,
and directed Judgment for 4 single felony. had
also before lac the ease OF Fisher vs.. The New York
Central Railroad, and / expressed an opinion
pretty decided that such the law that there
could be but one penalty IN o case OF this KIND
though separate and Independent offences were
united In the innictruau 1T 4 tAink ,.aau u...i.i