Year: 1875

i
zing and John O. Mott, counsel Of the three coored
men, William Thompson, William Ellis and Charles
Weston recently convicted OF the murder OF Abraham
Weisberg the Jew pedler in Lydg's Woods the 18th
ofJuy and be hanged the nth OF next
month, Tor writ OF and stay Of proceedings
each case. The application was first made to Judge
Barrett, they each tried before him. and the
statute compes such application TO be first made before
the Judge sitting at the trial. on behalf OF the lrst two
named prisoners II was urged that the jury
was not properly empaneled 1t having been
selected from panel made up by Thomas Dunlap,
whose appointment Commissioner Of Jurors by the
Mayor is claimed to be unconstitutional and further
that the Court OF General Sessions, the Indictment
having been found in that Court, had right to
transfer the indictment to the Oyer and Terminer On
behalf OF motion IL claimed in addition, that the
Court erred in refusing to appoint triers upon a
challenge favor of proposed juror upon the ground
that the authorizing the Court to act as riers TO
challenge TO favor unconstitutional Judge Bar
rct gave his decision yesterday in the case embodyng
the brief but important opinions the first
being upon the first two points raised behalf OF the
the prisoners and the second upon the question raised
to the appointment OF triers


The question with respect TO the challenge to the
array OF petit jurors fully discussed in the opinion
filed in this court upon the 26th inst in tho OF
Jacob Standerman. then shown that the title OF
officer de acto could be inquired into collateray
and that tho objection TO Mr. Dunlap's official action
wholly without foundation. This is only clear
upon principle but in accordance with the whole
rent OF authority in this country and in England Rel


erence is made TO that opinion for those authorities and
for the elaborate statement of the for de-
nying the present application, far t proceeds
upon this particular ground The only other point pre-
sented behalf the condemned the Court of
General Sessions had power to transfer the indct
mcnt to this Court for trial and consequently that this
Court was without jurisdiction in the premises II is
~
the general power to transfer indictments TO this Court
for trial, and indeed the statute upon the subject is
clear and explicit-"Evcry such Court of Oyer and
Termner shall have power to try all indictments found


in the Court OF General Sessions OF the peace of the
same county which shall have been sent by order OF
such Court of General Sessions be received by said
| Court OF Oyer and Termncr' q Revised Statutes,
| marginal page 204, 15) The claim is that tho
power is limited to the indictment before arragnment
and plea, and not to the issue. Tho point is truly
frivolous, and there would be more force in the claim
that the Sessions could not remove the Indictment
until after nrraignment and plea For the Indictment
except by ISSUE The application writ OF error
with stay of proceedings IS therefore denied.


/ In the case OF William Thompson and William Ellis
the Court has passed, adversely TO the condemned,
upon all the points here presented except one That
consists of the refusal of the Court to appoint
upon challenge to the favor aud exception
the ruling that such challenge not sustained by
the evidence. The refusal TO appoint triers was in
strict conformity the statute, which provides that
all challenges jurors both civil and criminal cases,
shall bc tried by the Court only uaws of 1873, chap.
427 sec H. II is claimed that the statutory innovation
upon the ancient practice Of determining challenges to
the favor by means OF trers is unconstitutional The
| general subject was considered in Stokes VS.. The
People So N ", 1874 and it there in substance held
that while the constitution undoubtedly secured to
accused of felony the right TO be tried only by an
impartial jury OF twelve men. Yet 1t did not impress
upon practice all the rules machinery and matters
of detail whereby that result sought to be obtained
atcommon law "Whc the constitution, says Mr.. JUS
tice Grover secures the right Of trial by an impartial
jury, the mode OF proceedings and empaneliing such
jury is regulated by law either common statutory,
principally the latter and is within the power of the
Legislature from time to time 10 make such changes in
the law as may deem expedicn taking care 10 pre-
serve the right of trial by an impartial jury" The
criterion theR is whether this matter of detail tends to
deprive accused person OF an impartial Jury II is
obvious that it does not; that, the contrary, 1t
tends to secure him. If anything, a moro impartial
jury; for the inquiry into the mental state Of each
juror thus conducted by who is in constant train
ing develop within himself perfect freedom from
bias, passion prejudice MS Is permitted TO human
nature and to whom impartality is the business of a
life the whereby alone the of equity and
justice to be attained Judges no longer hold their
offices at the pleasure Of the Executive; they are not
the mere agents of King, President Governor. When
judges constitutionaly dependent upon the SOW
ereign the right to trers may have been important to
the SUBJECT but now when judges are constutonally
independent when they stand between the people and
the prisoner and perfectly free to protect the lat


IRON nny attempted oppression by the former they
bring the full and force OF trained judicial
! faculties to the question OF the impartiality
| of jurors, and they approach II in precisely
same spirit they do any question the
There therefore bc reasonable doubt either upon
principle or authority as to the consttutonalty OF tko
in question With respect TO the exception to tho
ruling that the juror stood Indifferent II may be said
that the decision of the Court upon the challenge to
the favor is final Such was undoubtedly the rule with
respect the decision OF trers when the Court by the
consent without the objection OF parties acted as
such (Costigan Cuyler, u n. Y, 134; Sanchez
People % n Y, LAT; o'Brien VS.. People, SO n. Y,
276 But the other hand, If IL be claimed that the
act in question gave right TO review every question:
OF fact las TO which opinion is expressedl
it must be held that there is reasonable doubt Of
the OF the ruling The juror testified that
| he had an impression or opinion, but simply from
newspaper reports, that such opinion was based upon
! the assumption that what he had read true. but
! that he did not know whether II was true or false
| that IL the kind of opinion that
he would have with regard to any item OF news which
he had seen in the newspapers, without stopping TO
inquire whether IL false; that IL moth
ing than that, nothing more than an impression
formed from what ho had read, and respecting which
he had exercised no judgment as to whether 1t was
true false and that II would not affect his judgment
in the least in the jury box but that he would be gov
erned by the evidence. fairer more impartial


Juror with sufficient education to read the news OF the
day and sufficient enlightenment TO desire TO keep up
with tho times IL would be difficult TO procure. The
application a writ or with stay of proceed
| ings must therefore be denied


Similar applications will be made to other judges OF
the Supreme Court by Mcssrs. Knitting and Mott, any
Judge Of this Court having the discretionary power to
allow the writ, with stay OF execution


ALLEGED FRAUDULENT INVOICES.
| The action OF the United States against the York
Street Flax Spinning Company uimited), OF Belfast,
Ireland 500 o0O god forfctures for alleged
undervaluations and frauds In invoicing imported
goods was begun yesterday before Judge Blatchford
and jury in the United States District Court The
trial commenced the 22d inst, but on account
OF the death of Vice President Wilson adjourned
to yesterday The York Street Company-one Of the
oldest and largest Of the Belfast linen manufacturers-
dispose of large part OF its products through branch
houses established in various countries OF them
being in charge of Messrs Sinclair Fawcctt at No.
154 Church street. In this city The government claims
that the goods invoiced by the company to
the branch house here have not been inyoced
at actual market value mt Belfast, as required
by the first section OF the act Of March
B. 1863 and test that question action has been
brought covering invoices between the months Of
December, 1872 and December, 1873 The defendant
claims that the market value at Belfast is the price at
which goods sold and exchanged in that market in
the regular OF trade between local houses and to
foreign buyers who purchase directly of the house
without the intervention OF tho various branch houses