Year: 1873

The excited state of the public mind upon
the subject of the late frequent murders, ana
the earnestness of the very general demand
for the enforcement of the criminal laws,
threatened at one time to lead to perverslon
of Justice, by establishing blind, unreasOn-
inc. and rigid action of the Courts. While
public expression tends to correct the laxity
into which the Courts occasionally lapse,
there is danger that individual cases may
at the same time be prejudiced by popular
clamor. Judge Davis's decision on the
application of Stokes for stay of execution
will serve to prevent this public Indignation
from doing what might prove an individual
wrong in his case, while it will not lessen In
any serious degree the wholesome vigor OF
public opinion on the present need OF the
strict enforcement of the criminal laws. II
in the opinion of the Court of Appeals, EOS
ter, whose crime was unprOyoked and brutal
was entitled to rehearins, Stokes, who GER
tainlv had been provoked, and had reason 10
fear his victim, may reasonably lay clam 10
the same privilege. The stay will further delay
but need not defeat justice In these matters
of life and death where there is doubt there
ougbt to be delay. 1t is where delays are OBJ





had upon trivial pleas, and where new trials
are granted upon contemplate technicalitics,
often invented by ingenious counsel, that dal-
lance with the law breeds decentralization.


We hope for wholesome effect from tins
decision of Judge Davis. 1t was not to be
expected that Judge Boardman would reverse
his own decision and grant new trial. 1t Is
not in human nature, even on the bench, to
admit candidly its own errors, particularly
when the Justice thus asked to reconsider his
judgments has returned to the country dis
trict from which he came to find himself made
locally famous by the very decisions he Is re-
auested to confess, on sober second thought, to
be blunders. Judge Davis, in granting the stay,
has not decided that Judge BOardman was
wrong; he merely differs with him, and re-
maDds 10 the next General Term, to be held
in March, the decision as to which is night
The effect of the stay is simply to delay exc
cutiOn until the three Judges who sit in Cen
eral Term can settle the question. If the
General Term shall decide Judge Boardman
to be right, the execution must take placej II
it holds his rulings wrong, the prisoner is en-
titled to new trial. Yet we must frankly
confess that the possibilities of infinite delay
WHICH Iulh Ill bnlo VI AN'iN"'Ho NAN
anothers judgments by courts of equal power,
are alarming. Sooner or later it must be re-
formed altogether; till then we may be thank
full if it Is not often put to worse uses than
at present.


Judge Davis, while intimating that Judge
Boardman erred in excluding certain testi-
mony, grants the stay on the ground that the
Court was at fault in requiring the prisoner
to prove that there was no malicious premedi-
tatiOn. The ruling at the time it was made
struck us as a mild but not less obnoxious form
Of the horrible French law which holds man
guilty until he proves his innocence. Our more
benign law reverses this barbarous rule.


The possibilities of new trial appear still
remote, but it is understood that if one is
granted the woman who picked up what is
supposed to have been Fisk's pistol, and the
gentleman to whom she gave it, will both be
produced. The woman ill the case is SO dis
reputable that the defense have heretofore
hardly desired her as witness; and the gen.
tleman so respectable that he has not cared to
reveal himself in connection with the case. 1t
seems to have been an error not to produce
both before.