Year: 1872

McCunn and Prindle


The answer of Judge Prndle which is In substance
denial OF the charges preferred against him, was ed
and read and the trial adjourned till Wednesday June
%, at 10 a. IN.


The case Judge McCunn then taken up. Senator
Johnson proposed that the investigation be referred to
committee OF three be appointed by the Senate This
gave rise TO long and animated discussion, in which IL
was contended by Senator Murphy that tho evidence
should be taken de moro, II the accused desired, while
Mr. d. p Wood argued that 10 take the evidence again
in full would be simply to repeat what had already been
done. He also opposed to the matter being heard
before Committee The printed evidence presented to
the Senate had been taken by Committee OF the House
duly authorized TO issue subpenas and hear witnesses
under OATH and was, therefore. authoritative an ex-
animation could be made by Committee OF their own
body.


Col A. C. Davis principal counsel for Judge McCunn,
said there preliminary question relating to the
ursdc Of the Senate the case which they de-
sired to be heard upon before proceeding with the trial
II the Senate should decide that in their favor there
would necessity for the charges to be heard before


Committee before the body of the Senate. He hoped
the further hearing would be adjourned until exJudRe
Selden could be present TO answer this question, ana
thereupon Senator Murphy offered amendment TO the
motion Of Mr. Johnson that the whole matter be post
pOned until Tuesday next.


ExJudge Van Cott said the position occupied by him
self and associates an anomalous one. They were
there as they supposed for the purpose Of aiding the
in the investigation rather than prosecutors.
They had taken the responsibility OF bringing charges
against Judge whose court they were Obliged 10
practice and they desired 1t to be distinctly understood
that the investigation should go and 90 further,
II the motion to adjourn should prevail and that such
testimony had been already taken should not be taken
over again. leauing the accused TO introduce such ev
dence in rebutta he might see ft. He opposed the
proposition TO adjourn by which nothing but delay was
20 be gained.


Mr.. D. p. Wood inquired whel er the prosecutors were
ready for trall ExJudge Van Cott said yes they had
witnesses In attendance sufficient TO occupy the Senate
for some time,


The preliminary question touching the jurisdiction OF
the Senate over the then discussed Mr. Moak,
on behalf of Judge McCunn claimed that the Senate has
no Jurisdiction for the that the Governor did not
absolutely recommend his removal, required by the
Constitution. He thought that before man can be put
his trial to be removed from Office he was entitled to
an examination before q competent tribunal, and the
Governor should be able TO say, on the investigation
fore him. that "there is every reason why the man
should be removed, and do ask for his removal" 1t
proper for the Senate to act on the message
transmitted recommending his clients removal, If the
evidence sustained the charges than It would be for
petit Jury to act in the Of charged with bur
glary by grand jury who simply sent message, with
the evidence stating that they had neither made an in
yestigation nor heard the evidence, but recommended
the petit Jury to punish him II they found him guilty
such evidence.


There is no pretense the Governors that he
ever looked at the evidence. The Assembly sent the
matter to the Governor who sends it TO the Senate II
the Senate should and the Governor should ap
point successor, and that should find Judge
McCunn in possession and the latter should refuse TO
yacate on the ground that he had not been removed
cording the law and the CONSTITUTIONAL that success
cor should begin proceedings by quo rdrrdnfo, what
could he provei Why the first thing would be that the
Ha1 1fuy 70
the Constitution That is something which, contend
he could not prove merey that the Governor had
recommended the Senate TO investigate the charges.
Mr. Moak cited the of Richard Carrague Justice OF
the Peace OF the City OF Hudson wherein Judge Bron
son said "The defendant only he removed by the
Senate on the recommendation OF the Governor"
Ex-Judge Van Cott said


There is no dispute between the learned counsel and
myself how the Senate acts IN case Of this charac
ter IL acts as part of the Executive branch OF the
that capacity in the appointment OF certain Officers
sage TO the Senate recommending the appointment OF A.
B. Judge OF the Supreme Court, II the senate upon
inquiry should be satisfied OF his fitness for the position
and the Senate should act upon the nomination in that
FORM does any doubt that the nomination and ap-
pointment thus made would be within the meaning of
The Constitutoni In what words shall the Governor
put his recommendation According to the Constitu-
things be complied WITH among which that the
cused shall receive copy OF the charges and have an
opportunity being heard The argument made that
the recommendation Of the Governor was annuled by
adding the clause the Senate should md the charges
true" The Governor has complied Doth With
the spirit and the letter OF the Constitution ia
this case. and in sending the evidence here wlth
he virtually that he deems that evidence sui-
cent to warrant the Senate in removing him Inc SEN
are could not remove the arbitrary recommendation
OF the Governor without an investigation according to
the Constitution.


At the conclusion Of Judge Van Colts remarks the
te took a recess till p. On the reassemblng Col.
A. c. Davis on behalf Of Judge McCunn, spoke on the
question Of Jurisdiction He said he hoped the Senate
would dvest itself Of all feeling in regard to the ae-
cused and decide the question solely with reference TO
the law, remembering that no good can be accom-
plished by the removal of even bad man If be done
ontrary to law He claimed that the message not
a recommendation to remove, but simply to consider
batch of papers Col Davis continued at length TO
ably argue the point which he had raised to sustain
naturally weak case, and was followed by r. w. Peck
ham, IT, who has been retained associate counsel for
Judge McCunn. In conclusion he made motion to dis
miss the proceedings the ground that this body has
acquired Jurisdiction to proceed to any final judg
ment and lacks Jurisdiction because there has
never been within the meaning Of the Constitution, a
recommendation the part Of the Governor for Judge
McCunn's removal. When Mr.. Peckham had concluded
his remarks in support Of the motion the Senate went
into Executive Session. and when the doors were opened
the president announced that the motion denied


Judge Van Cot then moved that the testimony taken
before the Assembly Judiciary Committee be taken
evidence in the before the Senate The defendants
objected, but said they were Wiling 10 accept
the documentary evidences IT, after examination, they
were satisfied they genuine. Some discussion en-
sued, which cut short by resolution offered by
Senator Johnson that Committee OF five be appointed
by the Senate TO the testimony in this in the
City Of NewYork; that the same be printed and fur
nshed to each Senator and that the Senate meet at the
Capitol thereon at such time as may be deter
mined on. Mr.. johnson stated that he could not be
Induced 10 act as a member OF the Committee. Mr..
James Wood offered resolution that the Senate ad-
iourn till tomorrow morning at 10 o'clock, which was
carried without any action on Mr. Johnsons resolution.
Senator Palmer who present yesterday and to-day,
was erroneouely reported as among the absentees


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