The New York Herald Newspaper, February 11, 1869, Page 4

THE COURTS. UNITED STATES CIRCUIT COURT. ‘The Fullerton Case—Another Oficial Inter- yention—The Trial Indefluitely Postponed, Before Judge Benedict. The United States vs. William Fullerton et al.— ‘This case, which, after repeated postponements, moved for by defendants’ counsel for various stated causes—time to plead, for counsel to prepare the de; fence, to await the result of applications to the authorities at Washington, &c,—was, on the last day of postponement, peremptorily set down for trial yesterday. To these delays and obstructions in the discharge of his duties in the premises the prose- cuting oMcer of the government in this district, United States District Attorney Courtney, was com- pelled to submit, and was only too giad to have a day fixed from which he had hoped there would be no further shirking of the case; but in this hope he was again disappointed, as will be seen from the proceedings, At the opening of the court @ large crowd filled the court room, inside the bar being devoted to the accommodation of the members of the legal profes- sion, of whoin there was a large number, and amon; whom were the associates of the errs and lis counsel, while every spot outside the bar was occupied by spectators, anxious to witness the proceedings in this important case, in which an emi- nent counsel Was oue of the accused, Judge Benedict having taken his seat on the bench called from the calendar the case of the United States ve. William Fullerton and others, ANOTHER LETTER FROM ATTORNEY GENERAL EVARTS STAVING OFF THE CASE. District Attorney Cot , rising to address the Court, said—May it please your Honor, in this case it has been well Known that the government, through its prosecuting oMmcer here, is ready and has been at any time since the finding of the mdictment to proceed with its tral. I nad hoped that I would liave been permitted to go on with the trial to-day, but 1 have received a letter irom the Attorney General. the contents of which | do not de- sire to give in full beyond iniorming the Court that the Attorney General has directed ine not to call on this case for trial until an examination of it can be made by him. 1am bound, your Hopor, to obey the directions thus given, and, therefore, unless the parties themselves desire to have the case ‘tried, I cannot move the case on this morning. Mr. Jencks, of counsel for the defeudants—We de- sire to know from the Attorney Gea— The Court—Do you move the case? Mr. Jencks—No, sir; we mereiy desire to know from the District’ Attorney if we are to receive notice, and what notice, of any day when it is in- tended to be moved. ‘the Court—1hat is a matter for the District Attor- ney to anawer. ir. Courtaey—I will answer the gentleman very frankly. As | said before | am not at liberty to pub- lish the contenis of the Attorney Generai's letter on this matter, 1 have replied to it, however, and just a8 so0u as the Attorney General acts in the matter (if he acts in one direction of course 1 cannot move it at all); bat if he acts as I think be will | will give the gentieman (Jencks) the earliest possible notice of his action and bring this case on. There shall be no delay on my part. The Court then proceeded with the remainder of the calendar, The Watson aad Crary Case—The Accused Having Forfeited Their Bail Take Leg Bail. The Court having called this case from the calen- dar in its order Mr. Courtnay, rising, announced that in pursuance with the order of the Conrt directed to him a few days ago, when the case was last called, he had issued two bench warrants for the rearrest of the defendants, Watson and Crary, they having forfeited their bail. The officers en- trusted with the @xecution of these warrants had made diligent search for the parties, had re- oe and reported that they had fled to parts un- uown. Harvey Pike jointly indicted with Watson and Crary was present in court, but the District Attorney took no action with regard to his case. The case stands over. The Leipzinger and Berringer Case~Another Sick Man Takes Flight. The case af he United States vs. BE, Leipzinger and Mex Berringer was the next cailed from the calendar. Mr. Courtney announced to the court that he had a similar report to make in this as in the Watson and Crary case. Berringer had been pleading sickness througa his counsel for some time past. His re- cognizances had been finally forfeited and a bench ‘Warrant issued for his rearrest. The officer entrusted with its execution retaras on it “not found.” At Berringer’s home the oflicer had been informed that it was vy the advice of his physician and for the benefit of his health thatthe defendant had left. His whereabouts, however, could not be ascer- tained. Case stands over. Collector O’Callaghan’s Case. The Case of the United States vs, Cotiector 0'Cal- laghan, of the Ninth District, and John F. Ulrich was the next called. Mr. Shea, counsel for O'Callaghan, applied for an adjournment of a few days to enable Mr. Stoughton, who had been employed in the case, to be present, that connsel being at preseat in Washingtoa. The case was ordered to stand adjourned to Mon- day next. The Case of Robert Boyd. The United States vs. Robert Boyd.—The defend- ant is charged with embezzling and destroying a letter belonging to the Post Office Department. In the absence of his counsel, yee ad Stuart, the Case was left in ite place in he calendar. ‘This disposed of calendar, and the court goon after adjourned. Indictments by the Grand Jury. The Grand Jury came into court yesterday and presented indictments.as follo ws:— The United States vs. Rosano Denero, alias Antonio @arro and Loteras Moletta,—Having in their posses- sion counterfeit national currency. Same vs. Joseph Lantarelle.—Uttering and selling counterfeit national currency. Same vs. Stephen Morabito.—Making counterfeit five cent cotn, UNITED STATES DISTRICT COURT—IN BANKRUPTCY. Powers of Registers Under Section Twenty- two of the Act. Before Judge Biatchford. In the Matter of Henry Bogert and D Bvans.—Judge Blatchford, in ruling upon the opinion of the Register in this case, says:—‘There is no doubt that the Register has power under section twenty- twoto upon the satisfactory or chal of & proof of debt. But in respect to this, as to all other matters, the duties and powers of the Register are to be exercised tn subordination to the of section four of the act, which a. 1n all matters where an issue of fact or of jaw is y opposing parti ing, adjourn the same inv court for decision by the judge.” -I do not perceive from the certificate that any issue was Taised and contested as to the matter certified to me. The certificate would seem to be made rather under } first paragraph of section six than under section ‘our, UNITED STATES CIRCUIT courT—in Equity. The Erie Litigation in the United States CourteCross Bill of Complaint. August Belmont and Brnest B. Lucke vs, The Brie Raihray Company and Henry B. Whélpley.—The Plaintiffs in this case have filed a cross bill In the United States Circuit Court, In which they state that having by leavé of the court been made defendants and permitted to appear and defend in a certain cause now pending in this court, sitting asa court of equity, wherein Henry B. Wheipley is complam- ant and the Erie Railway Company defendant, by leave of said court now appear and file thelr cross Dili agalust the said Wheipiey and sald Company and thereupon your orat ®ay that they were copartners 8, dealing under the firm name of A. be that they aro stockholders of the de Brie Kail. way Company, and hold ¢ r 3.000 shares of the common capital « napany ; that they originaliy purcha 4,000 shares of sald stock and held and owned 2,000 of said shares ever since the 9th of March, 1808: that they held and owned 1,000 other of said shares ever vince the 0th of May, 1s6s, at which time they pur- chased said 1,000 shares end paid therefor $72 50 per snare, that being then the market price thereof; that they heid and owned 590 other of said shares ever since the 16th of Augast, 1464, which they pur- chased and ve therefor $3 per share, that bein, tyen the market price thereof; that they held ani owned 600 other of said shares ever since the s1st of August, 1868, for which they paid $46 25 per share, that bemg then the market price thereol; that alig of said 4,000 shares were parchased in open Market im the ordinary course of business, aad the delivery thereof to your orators Was mae by the delivery vo them of certificates of said stock, with to transfer endorsed thereon, and that ifieates for 1,000 of said shares of Stock were sarrendered by them to raid company, and the stock there mentioned was transferred to your orators on the books of said com- pany. and on the same day new certificates were | wed fo your orators; that the certifieates for the rematiuing 3,000 were sirailavly surrendered by them to the sald company, and the stock therein montioned was transferred to your orators on the books oi said sompeny. and new certificates therefor Were on the same day issued to your orators. ‘The plaintiffs conclude a very voluminous cross- bill by praying the Court to grant them a writ of subpena ad respondendum, issued out of ana under the seal uf thes Court, directed to the said defend- ants, commanding tuem to appear by a dav certain And to make pnswWer to tins bil of complaints "2 AVOUST BELMONT, ‘The Alleged Frauds Uuder the Bankrept Law Case. Before Commissioner Wh ite. The United States vs, The Volk Brothers.—The @X- amination into this case was resumed yesterday by putting on the stand Mr. Read, the creditor of ‘ber Term of Over and Terminer had Pais tin! preceeding here ts tale att the next ys rN ems of ths court aiter the Qnding of the indict- men Judge Barnard said this court was presumed to be always in session, although adjourned from time to time for convenience. ‘rhe objection was overruled and exception taken. Judge Burnard then announced that before the whom the bankrupts purchased the goods in dis- eee were examined he desired to say to a cer- pute, Being questioned by Mr. McKeon, he stated that the bankrupts sent several times for the whiskey, seventy-five barrels, and that the last received by them on the 14th before they filed their petition. He deposed to a con- versation With one of the accused in whioh he said the day | less than forty-e in gang—some of whom were mt and who belonged to a notorious gang im the upper part of the cly—that if they mterfered with persons who appeared as witnesses on either hours afterwards. Informa. tion had been sent to the District Attorney and to other officals that certain witnesses had been that “they had kept off their failure as long as they | threatened that if they testified here they would be could, but that they had to give in.” On cross-examination by Edwin ayn the ness would not deny that Abrabam Volk told him they had sold and shipped the goods, and’ he had since discovered that the goods had tn fact been sold to a Ca ee “ Front ae nie, admitted bed be rupts mi jave Bard struggied to avoid a pitied nid but were obliged atilast to give way.” Considerable discussion arose u} the question of the adj ment of the proceed Edwin James on behalf of the bankrupts desired to proceed and state the nature of their defence to the charges, and said that they had sold and up to the oth and 10th days of December, and had paid cred- itors up to the night of the 12th large amounts, and it was not until that night they had no a.ternative but bankraptoy. Mr. McKeon said that these fraudulent transac- tions had startled the whole mercantile community. ‘The case then was adjourned to Friday. SUPREME COURT—CHAMBERS, The Erie Railroad War—The Receivership Order Vacated. Before Judge Cardozo. August Belmont et al. vs. The Erie Ratiroad Com- arsassi wit- | was interfered with those men who were inated ag soon as they gotout, If sarod thereof will find that somebody in this republican ang ot ours would get themselves into serious roul These remarks of the Judge created a marked sensation Ce 4 the spectators—the majority of | whom were of the square-jawed, Jow-browed, ruf- flanly element of the quarter of the city referred to. Throughout the entire day and into the long hours it during which the proceed- ings were continued the court room was crowded to its utmost capacity, even to the greatest discomfort and inconvenience. At one time the rash for ingress and place within the body of the court room was 80 great and, indeed, tumultuous, that J Barnard directed the officers to close the doors and allow no More persons in thar could find seats. Sal juently, however, the Court directed the officers to admit as many as the room would accommodate, and re- marked that perhaps the proceedings they were ~ to witness might prove @ salutary, warning to em. Witness then testified—I reside in Wayne county, Pa.; 1 was in Thirty-second street, near First ave- nue, about half-past ten o’clock, on the night of the 23d July; [saw @ man ling by a coal box on the upper or north side of Thirty-second t; Isaw of the evening and ni pany et Gl.—In this case Judge Cardozo rendered a lengthened decision, of which the following is a summary:—The motions in this case, the argument in which about three months since occupied the attention of the court for a period of nearly two weeks, have just been decided by Judge Car- dozo in an elaborate and exhaustive opinion upon the questions involved. The opinion, of which the following is an abstract, covers 120 pages of manuscript. This matter comes bofore the court upon an application to open an order made at Special Term, to allow the defendants to introduce proofs, which they could not produce when the mo- tion, which resulted in that order, was heard, and thereupon to hear the motion anew; and, if found to be required by law and justice, to vacate the order previously enteréd, and declaring that the plaintiffs are not entitled to the relief they obtained, to deny their motion for that relief. This is a very ordinary proceeding, constantly occurring, the Judge says, but as the question was raised and elaborately argued, he reviews at length the authori- ties, premising by saying that the twenty-third rule of the court has nothing to do with the matter. In- deed, it is mantfest, and so it has been always under- stood, that that rule relates exclusively to ex parte applications made out of court toa “judge or justice” upon affidavits; and so the rnie provides that upon making to a judye or justice an apts on, for an order, in the affidavit upon which the order is avked the party shall state whether any preivous ap- plication for such order has been made to any other juage or justice. But a motion upon notice to open an order is not addressed or presented to the Judge. it is an application to the Court. Judge Cardozo concludes, as a'result of his review of the discus- sions, that if it be possible that anything should be deemed to be settled by authority, the A oe tampa that a motion may upon appiication to the rt be rage and heard anew, if the Court in its discre- tion thinks sufficient reason exists for doing so, Must be considered as ccnclusively established. To sum It all up briefly, it is weli settled that whatever can bedone upon motion to. the Court may by the Court, upon further motion. be altered, modified or wholly undone. The second subject, do the defend- ants present such @ Case as justi the granting of the preliminary motion to open the rule;taken against them? is next considered, and Judge Cardozo takes this as the test of whether the motion to open should be granted. Have the defendants shown any material facts which were not presented to the court upon the previous motion, and if they have, were they, so far as such matters then exis! prevented from bringing them to the notice of the judge, by mistake, inadvertence, surprise, or excusable neg- lect?” The case, as insisted upon by each side, as ar- gued by counsel and already published, is stated, and the points made by defendants that they were taken by ae because the case was taken from tis regular place on the calendar, and that they had not sufiicient me to pene the necessary papers, are held to be well taken, and even those points are unnecessary, because the one conceded fact that ‘this case 18 prosecuted at the risk and expense of persons other than tne nominal plaintiffs, intro- duces a new feature, not developed before Mr. Justice Sutherland, which, upon authority, is decisive of the motion. This fact requires an_ interlocutory order admitting motion, must ‘Theresa Robinson as a party | tif, made by Judge Sutheriand on the 19th of November, 1868, does not affect the matter, When a suit is brought by one on his own behalf and all others similarly situated who see fit to come in and a themselves of its benefits, si others have no control of the litigat and are not authorized to interfere until a decree has been made in the cause (Innes R., p. 585.) It was then made should be vacated, and the motion for a receiver denied and the preliminary wnjunetion discharged. An order to that effect will accordingly be entered. And here (continues the Jt ) I might pro: bat Been fay performed Wf’ 1'aid not ant that Ianeels ‘no! a feel bound to hold that this ts one a 1s one of the cases, if ever there were one, in which the order on the original motion should be opened, even if the case presented no fact which was not then fully because I cannot hesitate to say ‘ities upon court at the rightfully be dis- haste win which I think it must the decision made was of inadvertence—a lack of the extent to which the cases in that branch such error would be but whether a will re- ie to him is and Taam Halli bet mabe i ae H i ei | 5 i z 4 if F i 5 g & | (hough he vs it is jecessary e Says it is Dot nN ed) whether the directors have the power to issue ponds for the amounts they may row to complete and finish or to operate the road and to convert thy pe on ie decides that the power to isshe the bohds, ina proper case, with the right to authorize their conversion into ‘stock, is beyond doubt. And that being so, the right of the direc- tora to issue stock in conversion of these bonds is clear, not only upon a fair and reasonable reading of the section, but upon the rule, that when a power is granted everything which is necessary to fully ef- fectuate it ang the acl it authorizes, is Implied if not expressed; aud also because it is but doing voluntarily what by a suit the co: might be compelled to do. The holders bonda would be entitled either to have the con- | tract to convert them into stock specitigaliy | performed, or else to recetye compensation In dam- ages—and Whetuer the one or the other, the pecu- niary effect on the company would be he fare. z= ong re 9 up slowly close sins e ings: he was moving very slow, and when I him he ‘iad i) H Thad got about tweive or twenty feet_ away when heard a report. and saw this prisoner, I think, siand- ing with a revoiver in his hand; the other man fell on one knee and put his hand on the und and was then facing this prisoner; the prisoner then fired another shot and I turned and ran away u) street; 1 heard only two shots then, but heard anotner some time aiterwards; the prisoner and the officer were about eight feet apart; 1 heard the re- port only of the first shot and then saw the pistol in the prisoner’s hand and saw the flash from it when he fired the Second time. mined—I live in Wayne county and have @ family there; my family was there two months ago; I had before the time of the murder been work- ing for Mr. Wright, corner of Fifty-fourth street and Second avenue; 1 am a house carpenter; on the day of this occurrence I had not been doing anything; tn the morning I was up in First and Second avenues, waiting for a man who was going to a job at Flush- ing with me; I might have taken about two drinks that day; from sunaown till about the time of the murder I had been in Tompkins Parade Ground; I was walking very slowly when the officer came along; | went into a place in Thirty-fourth street that night, looking for lodgings. a place where a sign says “Live and Let Live;” | didn’t drink there; when 1 was passing ‘Thirty-second street I saw this man at ence, standing by the coal box; I didn’t see the -ofticer till J got partly across the street; I cannot say exactly w! the box stood, but it was close to the corner, I think, in tne avenue; I spoke to no one at the time I saw the murder; I ran up the block to Thirty-fourth street; | went to get my satchel, but saw the house where I left it was closea; at a liquor store afterwards | heard some men saying, “Do you think he'll swing?” and some one said “he oughin’t to, it served him right, for he’s been after him for a long time;”? I went away from there and said no- thmg toany one about what I saw; | crawled over a fence into a lumber yara and slept ,there; T was not drunk: I ‘met an officer next morning in Thirty-iourth street, and he told me about the murder; he didn’t tell me who was killed, but he said they arrested a man named Real; he asked me if 1 wanted to see the man who was killed, and J went.and saw him at the station house; | saw a cap- tain or some other officer at the station house, and told bim all 1 knew about the murder; there might have been a man talking to the officer next morning at the corner of Thirty-iourth street; I don’t think they wrote down what I said at the station house; the coroner’s inquest was held that day and I was heid as a witness; | testified there to substantially the same facts | have testified to here; J think {did; I have been in the habit of passing through New York near- ly every spring; I didn’t see any pistol in the hand of deceased; he had his club in his hand and | think he was swinging it; I don’t remember hearing any words between deceased and prisoner. Redirect —] was passing along Thirty-second street d prisoner came down the avenue; the man who st by the coal box had his coat unbuttoned and his hand close by his body with his arms drawn up; he was facing towards the avenue, near the corner; he had a white shirt on and I think his vest was un- buttoned. Re-cross—I don’t remember whether there was @ moon that night, or whether it wes cloudy or ciear; the lamps were lit; I can’t say how large Smedick was; he was a good sized man; he had his uniform on. To aJuror—I was passing up on the west side of the avenue, and the coal box was on the north side of Thirty-second street. James Mee, an officer of the Metropolitan police, was sworn, and testified—I belonged to the police in July last, and was in the vicinity of the murder on the 23d of July; I was uainted with officer Smedick; about haif-past ten o'clock I was in Thir- ty-second street, between First and Second aveaues, ant im; he ran up to Thirty-second street, avenue, and up an alleyway into Thirty-third street, then up the avenue to Thirty-fourth and down Thirty-fourth street to Third avenue, and there I arrested A Vocal = not his fault, a Colt’s pistol from rels loaded. Cross-examined—When station house I asked him e said he had shot Smedtck; i don’t remember whethet he told me that night why he had killed Smedick; he told me next day. What did he say? lndge Barnard—No, no, that won’t do. Cross-examination continued—I don’t remember that he told me why he kiied him that might on the a5iEE 8 way to the station house; he may have told me; he did not tell me next day. What did he tell you was the reason ? fudge Barnard—That won't do, Judge Stuart, Mr. Stuart claimed that the res gesta of the case was not affected by time. The witness was not cer- tain whether the prisoner told him why he killed de- ceased on the same night, and they were entitled to have the evidence of the witness on this point. Judge Barnard overruled the point ta! what the prisoner said next could not be admit- ted, as he had had time to and manufacture when he got near irty-second was walking Very slowly, and I saw ® man neara coal box raise his hand and fire a shot; he fred a second shot, and I saw the policeman fail over; the prisoner then fired a third shot; | didn’t go down to see the deceased, , Cros#-exainined—! was standing in the door of the store, between Thirty-third and Thirty-fourth streets; Ido not remember whether it was a clear night; when I first saw oficer Smedick he was talking to me at the door; then he walked very slowly down to Thirty second street; it took him ahout a couple of Minutes to get down to Thirty-second street; Isaw him all the time; | did not see anybody eise im the street: Thad put the shutters up belore Smedick assed me; Sincdick was walking slowly when I beard the shot; | did not see the man till he fh the shot; he came runving from the coal box; the jt box is right on Thirty-second street; | could see the box: | did not see the man who fired the shot behind the coal box; came runaing from it; 1 am sure I saw the Nor does he think that it is at all surprising that the power should have been conferred on the directors, A. J. Vanderpoel, Joun FE. Burrill. W, Puilerto: W. Stonghton, John K. Porter and P. 1). Fie! counsel ‘for defendants, for ond (, Ay Kapallo, 8. L. M. Barlow, » W. Macfarland, of counsel for plaintiffs, opposed. COURT OF OVER AND TERMINER, The Trial of John Real for the Murder of Oticer John Smedick—Testimony for the Prosecution and DefencemSumming Up of Connsel=Charge to tha Jary—The Prisoner Found Guilty and Sentenced to be Hanged on the 24 of April Next. Before Judge Barnard. The People, &c., 08%. John Real.—At the open. ing of this court yesterday morning the trial of John Real was commenced. District Attor- ney Garvin made an elaborate opening argu- ment, in which Stated that the mardered of. or | cer John, Smedick, was walking slowly and quietly along the street when he was shot, and the assassin, as if to make sare of the completeness of his work, then fired @ second shot, which also took effect upon his vietin. ‘The asasein was then seen to stoop down and listen, as though desirous of making sure tha the oMeer ‘was dead. ‘the er was pur- pea eee. PAS prove these things he me of i from jury a the prisoner. ee sr ‘TIMONY FOR THE PROSRCUTION, Edward Carpenter was the fi itness called es Pei ate Cd sworn, peRi rs x-Jndge Stuart here rose and aaid statu whee that a indictment found iy the Gonseat Reanio may be transferred to tw rey by to the next session of the Tha tuo July Tora of General’ Sessioun ‘aad tue Octe. pistol fash three times; 1diints hear amy voices; | didn’t know whether anything happened between the officer and the prisoner until the shot was fired; the man who fired Tan up Thirty-second stre after he ren away | saw somebody run to the police ofeey; | dtdu’t see any- | — - up the averiue; Tkhew mediek Be was s » | post about here, arid oit to hint; “After | theta eal mY ct 1 ae ert the hotise alt nfBhts T didys told any) { Sat ants npc came Lex’ Mucene aod mi eW AVthing about it: the policeman | came abont eight o'clock; there had been two or tree customers tn the store that morning before; the policeman was the first person | told o| it: | diawt hear any one else speak about it that morning; (witness Identified the officer in court who called on him next morning); I went with the offi. cer to the station house; | was aworn there and told | all iknew—about the same { have said here; the | Recond shot was fired directly after the first: the third shot was fired about 9 minute after; i bad seen Real before that might around the door; T didn't see him that night around the store.- Daniel Maskel called and «worn testified—I know Ceal about five or six years by wight; 1 him on the corner ot ‘Thirty-second street night in question; I saw him that night in hear Thirty-third street and after he left @ came in and said a policeman was shot, John Byiand, 219 Thirty-eighth street-Lived on 22d of July last at the corner of Thirty-second street and First avenue; that night my litte boy was dead, and I came down stairs to get some Nquor for the wake; | heard # shot and ran to the door of the and saw the form of a man firing a pistol and saw him fire @ second shot; then he turned the pistol In his hand as though sometiing was wrong, and then he fired @ third shot; | didn’t see what ne’ oo he ran up Thirty-second street and into an alley way, near Second aven Thirty-necond atreet, with others, him said, “There | Tam but when he turned into the alley I didn’t foliow him, for | was afraid he might shoot me too; the coal box was so situated that At 8 distance, coming up the avenue, you could not tell ita (5+) was standing close to whether he wos standiug the dour of the store oF at the end of the box, ae anything of the vureult of the 1 could ‘Croae-cxamined—| hot Stediok until 1 returned trary ide of the |. he ayy ‘was. | case they would Et themselves into trouble within of Decem! ht street the alley L went up street, and down Thirty- ‘Two or three passages of the written testim¢ given before the Coroner by thig witness were and he was asked if he gave that testimon . He sald he did not remember exactly what he testified to then, but did not consider himseif bound to acknow- it what another man bad written as his evidence, He not read it himself after he testiflea, and did not remember whether it was read to him. ‘The evi- dence did not differ in any materia! aspect from that cept that it was not so 1uil and con- cise a8 to details. At one o'clock a receas was taken for half an hour. Police, Twenty-first precinct, was the first witness called after recess, and bet sworn, i—On the 23d July last I was in com- house; John 81 pazoinan; Tfiret heard of his being kided about alf-past ten o’clock that night; Yad man came an officer had been shot 1n Firat avenue; lordered out the reserve section and about tive minutes afterward officer Mee came in with the ace while the ner Was in the station house asked some one shot and Real said “| did it; [ am the man; or I it anyhow;” I then ing! if Smedick was dead; Real remarked, “If he aln’t dead it atn’t my tault;” I then took his jigree and he was searched; the was rought in about five minutes after the prisoner; I was informed that he was then dead; | was handed a |e belonging to Mr. Smedick and examined it. vidence as to the condition of Smedick’s whether any barrels had been was excluded, the Court ruling that If attempted to prove that the officer had fired at the prisoner this evidence could be offered in rebuttal, ‘Witness continued—I found one chamber of Real's dae er poaae”Fthink, is perhaps 3,000 feet from the station hot is a) fee scene of the murders I ‘da not go to the place that night, Sross-examined—I do not know, of own knowledge, that the pistol with five barrels dis- charged was the pistol taken from Real; I have only the word of the officer who handed it to me; I have Smedick’s pistol in my ket; 1 think the captain bas the pistol that five barrels discharged; I do not know who has had custody of it; the deceased officer’s name is spelled Smevick; I do not know from the deceased that he had had any difficulty with the prisoner; I know that Real had been ar- rested. Officer McCue was next called, sworn, and testi. fled—I was a police officer last July, and was in the neighborhood of the murder at the time it occurred; I was there about fitteen minutes after I heard the first shot; I found Smedick lying on his-back on the sidewalk of First avenue. near the gutter; [saw a istol shot wound near his ear, and the brains oozing rom the wound; there was another wound on his breast and back, as though the ball had passed through him; Smedick’s pistol was found in his pig on his hip, under his coat; I saw his pistol his pocket when he was lying on the sidewalk; when I saw him | thought he could not have had his pistol with him, or that it was unloaded, or he would not allow himself to be shot; I took 1t out and saw that the barrels were all loaded; his pistol was in his pocket when he was taken to the station house; Real was not near when I found the body; I have seen Real once brought into the station house by Smedick, perhaps twice; Smedick had ar- rested him; there was blood on Real’s face as though he had been cut; this was about fifteen days before the murder; Smedick had brought Real in at the time, Re-direct,—Q. Who helped officer Smedick to ar- rest Realon that occasion? A. I think tt was officer Fitzgerald; Smedick. ¢. Did you hear what Real was arrested for then? did you hear it stated in the presence of Real? A. I heard it said before him that it was for ge | to shoot officer Smedick. (This answer was rul out by the Court.} Captain Allaire, of the Twenty-first precinct, was next sworn and testifled—l was not in the station house at the time Smedick avas brought in; as I wentout of the station house 1 met officers Mee and Lambrecht with the prisoner; I then went down to the scene of the murder, and when I came back Smedick’s body had been brought in; in the oilice I asked Real if he had shot Smedick, and he said he had; he also said either that he tried hard enough or that it was not his fault; I found a pistol lyingon the desk said to be the pistol taken from the prisoner; there were five bar- Tels discharged and one loaded, without a cap on, and it has remained in iy possession tm that condition ever since; I don’t know that it was Real's; I saw Smedick’s pis- tol in his pocket when he was lying dead in the station house; 1 don’t know who has got it now; I had seen Real in the station house under arrest before that time; he had been beaten, but not badly beaten; I don’t know personally of any ditficulty be- tween and Smedick; I know Smedick arrested him twice; Smedick has spoken to me about Real, but never in any way but ofticially; he never spoke harshly or unkindly of Real, nothing more than in relation to his arrests and trials. there was another oilicer assisting A. Yes, Ju Barnard—Violence had th Witness: the Judge)— ir snc ik em u (to i yes, sir; Smedic! told ine that Heal had attempted to shoot him Philip Lambrecht, an officer of the Twenty-first Precinct, was next sworn, and testifled—| on the corner of Thirty-first street and Second —* to officers McCue and Terry, on the night of July 23 last, when I heard three stiots fired, and an alarm rap: I ran to the corner of sroond street nud taw Smiedick lying on the sidewall, and saw officer Mee bres | afterwards with prisoner; I went with officer Mee and the to the station house; Real, on the way, sald to me:—"I have been .aying for him ail night; a named Dillon shot “Bourbon 5 don’t remem! had known answer for a made him, and not violations of jaw bh persone. ‘They were to j the case from the prisoner offer, at least excusabiiity, if not justifiabiiity, on his Real did not deny that shot the policeman, Smedick, Real’s mental and moral status at the time was not high. He was uneducated and of earnest 7 jen boring man—a& man of peace, par the exception of his difm- culties with that officer; @ man addicted to but one vice, and that vice intemperance -— and suffering from the maanity produced by that tn- temperance. But he was a man whe aiso, by reason of that vice, bad been followed, arrested, beaten and “braised by that ofticer, Incited by these wrongs and laboring under the weakness of his only failing, he accidentally met Smedick, the oMcer who had often arrested and threatened to beat his ‘“‘bioody head of.” The officer approached him armed, and Keal, to gave himself from violence at least, and Cor 4 his Life, did ‘hat the law says he may do. If a man has well grounded reason to believe that he is about to be assaulted he stands justifleddo kuling his ad. versary to save himseif, ag 3 Pumver 1 cs ara thet Fallon pg Ha tas witness for jeleri 4, being aworll, tesa. fad: ow the er Real; { know that in July he waa 6 ing a yeryal in the East river: en the bench that ne Td0n"t know whether a was in charge of the ; f only saw him on tl > e vessel. Cross-examined—I don’t know what hé was doing on the vessel; le was there with other men. ‘To the Court—I saw @ man by the name of Collins there and several others. Augustus Adams was next sworn and testified:—1 live at 605 Second avenue, and know the prisoner; | ‘was engaged in watching # vessel with Real on the East river, in June and July; he had a pistol to pro- tect himself and ane property; the vessel was a bark seized tor iiliett dist Cross-examined— fhe mer relieved me the night of the occurrence; here regulariy: he was tl was on at night generally; I don’t know that Sver uiere m'the daytime. vesbes Bernard McGill was sworn and testified—I live at $26 East Thirty-sixth street; | know the prisoner and iiremne T had @ conversation in Jane Smedick said about Real at that (Objecied to as incompetent and overruled. Judge Stuart said they proposed to show that ihe Meco toes toe priscacs whe heretic ioerted oner was, thoref of Smedick’s fechas snd intentions towards Irn. ‘The Court finally decided to admit the testi under the counsel's stipulation to correct tant show that Real acted the influence of such in- Witness—I was up the avenue and Smedick called after me and asked mo what was my hurry; I toid him I thought I saw Real going from Second to Third avenue coming down; he that he had two sherit™ with him; | aaid “No,” and he said “ Vi have hima in Gefore night; he said he under bonds; he was arrested don’t Know what for; 1 told Keal what Smedick said two or three weeks before Real killed Smedick. Redirect—I know of a d and Smedick that took place in James McDonald was next called and sworn, and eet know the prisoner and knew the de- Q. Did you see anything that happened between Ron ane the deceased on the evening of July 8 last? e8; . State what it was? (Objected to as incompetent.) ‘ne Court held it to be incompetent to show these isolated transactions, Mr. Stuart said he proposed so to connect the threats of Smedick previously testified to with this evidence, as to show that Smedick so arrested him; that Real was helplessly intoxicated, and was cruelly beaten by him without provocation, with @ view to create grounds of apprehension on the part of the isoner as to his receiving like treatment at the Hine of the killing. My The Court overruled the offer, and counsel ex- cepted. All father Reisen of @ similarjuature was also governed by this raling. Wiluam J, Shields was sworn, and testified—I tive at 631 First avenue; it is about two blocks above where Smedick was killed; I conversed that nizht with both Real and Smedick; 1 saw Smedick first; I saw Real, about six minutes after. ‘ards; went down the avenue wi they both tm the same direction; Smedick went down tirst; 1 went shortly aiterwards to a grocer store just below and talked with the clerk; the clerk stood ‘at the door and I asked him to seil me some bread: he said the etore was shut up; I went back tomy store nd about four minutes afterwards heard the shooting; } left the cierk standing st his door. Croas-examined—It is not quite @ block trom my store eter rn Sn eM was enna} ‘was not over a minut gon store from the time I left the clerk; it might have been twelve minutes before I saw the clerk that smedick went down the ‘avenue; I don’t know whetber Smedick went into any store after he me; me ae have done #0, and Real might have passed him there, James Rowe was the next witness, and testified—I know the prisoner; | live, | think, at 1,403 Broadway; the night before the killing I saw Real at Thirty-sec- ond street and Broadway. Mr. Stuart proposed to show'a state of delirium the prisoner at that time, Admitted. Wituess resuming—Real didn’t seem to know me at first, and isaw he had been drinking; I asked him where he was going and he said, “1 as itis your business;” he said, ‘they are after and will put me out of the way;”’ I don’t know who he meant by “they; we went down Broadway, and he grabbed hold ‘of me suddenly and said, “I thought you were on fire;'’ after going some distence further I asked him to take a drink, and as I turned into the saloon he said, “‘here they are, by God, alter me;” he then ran away and I saw him no more, Cross-examined—I am now a car starter on the ‘Third avenue line,ot cars; 1 didn’t see Real the next day; it was not dark on the ev when I con- versed with him; I was about half or three-quarters of an hour in his company; 1 thought he the horrors; I could not say whether he was a drinker or not. Redirect—What impression did his actions and conduct make upon you at the time? Objected to and overruled. Several questions of a similar nature were put and overruled, To the Court—There was nothing said about police officers being after him; I don’t know who he meant by saying “they” were after him; there were people passing and re] ing. Thomas Mul was next called and sworn, and testilied—i know the prisoner; I saw him at half- ry six on the evening of the murder; I was with iin all that afternoon; we went up the river to swim; we had a drink at Jones’ Wood, ‘and when the second drink was called he wouldn’t drink with us; he acted very queer; when we got in swimming he Would not come out when we wanted him to; when we were coming down the river he said, when pas- sing the Penitentiary, “I wonder what cell they are going to put me in ‘a ‘The witness’ opinion as to Real’s mental condi- tion and state at that time was overruled and excep- tion taken. Patrick McCauley was then sworn, and testified— I know the prisoner; he is my brother-in-law; I know his habits as to diinking. ‘The court overruled evidence tending to show that the prisoner was addicted to drink at periods, and that when he had abandoned these debauches he was always attacked with delirium tremens in the form of a disease. The counsel excepted. The court offered to admit evidence, if any were offered, showing that Real was under such an attack at the time of the killing. Henry Real was next sworn, and testified—I am no relation to the prisoner; at the time of this mur- der I was working in the Admiral’s garden on Gov- ernor’s Island; | wasin New York on the night in question, and was in First avenue going down town on the northwest side; I saw two men standing on the corner of Tlury-second street talking and they both clmehed; then I saw @ shot fired and then a second shot; one of them was a iceman; I saw the big- gest man raise his hand. and {think he had a club or some weapon in his hand; J think 1t was the policeman. Cross-examined—I might have had hittie freaks in New York; 1 was arrested in New York. Q. Have you ever been in the Penitentlary? A. I have, sir, for four months; Isaw no one standing around Thirty-second street when these men were clinched; before | moved I heard ashot and saw one of the men fall; I can’t say but that the second shot was fired before the man fell to the ground; 1 saw a coal box; Gn Bhim on the avenue, I think, when they were clinched; I didn’t see where the man who fired the shot came from. ‘Yhe defence here rested their case, agd Mr. B. K. Phelps proceeded, at six o’clock, to the closing argument on behalt of the prisoner, after the most persistent efforts to obtain the consent of the Court that the case be concluded to-day. After much discussion the question was left to the jury, and er Saceted to remain last night until the case was District Attorney Garvin then closed the case for the peopie in an eloquent ent. Judge Barnard then cl the jury. The statute of our State defines mu: a to placed John Real on trial. In order to the all ee hn a el RL tiorney, WI it sole wittiesses Who that on 23d of July, 1868, officer John Smedick came by his Fgh : shot with a pistol ier ball. at the bar, ae ae been proved by the pi and being admit prison- placed on trial here to-day; for tt pre- eee maine a ae at ae ghar that would be, that if he poin foaled with vince merely to Ld down the __ law, and you can make bebe ication of the facts to the law. If you are sat that there was a scumMe be- tween these two men and that Real, at the time fired the pistol, did so on the supposition that this iceman was ta inflict it bod! oy him, that his life was in danger or fy a4 going to be killed, and you are satisfied he labored under those timpressions, then, a8 a matter of course, it would become an excuse and bring it down to manslaughter in the fourth It would be ex- cusable or justifiable, and ai bh he may have supposed at that time If it that the man in- tended to kill him, though in reality he never meant to do it, then of course he would be entitied to the benedt of that doubt ,which would resuit also in the same verdict, because the law does not compel a man to stand and suffer himself to be killed, ff, then, you have any reasonable doubt arising from the evidence in this case as to whether the defendant i# guiity beyond @ moral certainty, ‘ou will give him the beneilt of that doubt and fad nim guilty of a lesser degree of homicide. By a doubt [do not mean & mere possibility, tmagination or abstraction; I mean such @ reasonable doubt as a reasonable human being in the ordinary pursuits of life would say that the Case Was so evenly balanced that he could not say he was guilty to @ moral cer- tainty. If such doubts exist they are his property. Lf, however, gentlemen, the case is made out on the part of the people jainiy and clearly to you that this man came to his death from a premeditated Les e part of John Real to kill him, and he ase, it is your duty a& jurors and aly to find @ verdict = mong you my 4 gu The fesponsiv.. divided: ee - pe age on me singiy; ‘onl a8 Citize., seeing the laws in this large city Drop. Ney property obeyed and carried out, it Is you. a Id the criminal officers with every means tn, ‘y power by finding a verdict that evidence win warrant. Uniess that is dove, and unless the com. munity can be satisfied that they nave a jury to ap- peal to, then the laws fail to be enforced society resolves itself into a lawless mob, and the result ia bad men commit murder, rob and steal without re- straint, Such a state of affairs in amy community must be promesy checked, and {it only requires romptness on the part of the prosecuting lawyers, fevers and jadges to put such a state of affairs down. All that the community desire at your hands is jns- tice. They want no victim; ti if ask #impie, pure and naked justice. You are to to no outside clamor; you are to be swayed by no ontaide considerations, nor by any Cer you might feet for the person chai with this crime, more than ht feel for the man who sieeps jeep in his cold and alient ee Ihave thus gone over all the propositions of Jaw which in my judgment it has become necessary to charge, and those are:—You must be satisfied that the defendant cominitted this act and that at the time he committed it he intended to kill this police. man, and that he had no excuse for it; that there was no scutiling or fighting, nothing of the kind, bat ‘that he lay in watt for him aud came up and shot him. If that existe it 1s murder, Notoniy do tho community desire to be protected but you must pro- tect its rate officers. The guardians who watch over the life and property of others who are haleep or absent must be protected us well as anybody else. If it is no crime to shoot a policeman, if a policeman can be shot and his marderers acquitted by a jury it the hy you his ‘everinating ev ‘bout twenty minutes to eleven o'clock Barnard came into court and announced had been informed that tue jury had probably would not agree to-night, rected that the court be kept onen until ten this mornmg, at which time he would recet would remand them uuti such time as they wor agree. Quite anumber of persons who had listening around the court all day then ieft, and Judge Barnard ordered the doors closed, and that the police, about twenty members of which force were present on duty, be brought into court, Judge Barnard kept nis seat on the versing With some friends, and the buzz of conver- sation among the audience was renewed, ‘At eleven o'clock a stir was apparent, and the shortly entered and took <heir seats, # : oi z j : & Ee feat and ‘as ‘oll =was called each juror Bf nis name. The prisoner was alrected to rise, and the Court aad jury also rose to their feet and the Clerk, Mr. Vandev sald— “uentlemen of the jury, how say yout Do you find the prisoner at the bar gulity’ or not guilty?’ The foreman—Guilly, with a recommendation to The District Attorney moved that in view of tne ciroumstances of this case the court pronounce judg- ment fortawith, Mr. Stuart made an eloquent appeal for a ponement of sentence, urging the poverty of his client and his probable clauce @ successful appeal. * judge Barnard denied the motion, saying:— T am exceedingly willing at all times to oblige you and your ite counsel in this case, but in conse- quence of the finding of the jury, with which of course I have no fault to find, { think your client fared much than he had any rea- of the sentence ular difference to the prisoner, because it. has to come at some time, oither now or on some other occasion, and the object of the imposition of the sentence is to convince the lawiess peupie in’ New York that courts are in earnest to prevent the commission crime, and the only way ty do that Is to show that the conviction speoally follows the offence. Enter- taining those views I am compelled very reluctantly to overrule your motion, Mr. Vandervoort, the Clerk of the court, then de- manded of the prisoner if he. had anything to say "ihe prsouer sald, “have noluing — ne er oe noting aan ‘counsel interrapting, moved an arrest of ent 4 ‘Sudge Bernard dented the motion. ue prisoner was then bid (o stand up for sen- nee. Mr. Justice Barnard—Real, the jury nave found you guilty of the crime of inurder, with a recom- mendation to mercy, With thas recommendation I have nothing todo. It isto be addressed to su- rior officer—the Governor of the State of New ‘ork. It1s very like!y that the Governor, who has the power to entertain that application, may do So far as I am aware, every Governor, eXxce| when the proof has been remarkably clear, invariably listened to sudh @ recommendation from in . your case so far as I see I entertain not a doubt, I see not the slightes: chance for your innocence. It is my duty now to pass the sentence which the law re- uires, which is that you be taken hence to-the jail from whence you came and be there confined until the second day of April next ensuing, and that on that day, between the hours of nine and eleven in ie morning, you be hanged by the neck until you are dea ‘The warrant of execution was read to the prisoner and he was then taken from the court, doors being closed to prevent the crowd following. The jurors were next permitted to leave, and in @ short ume afterward the large audience witharew. COURT OF GENERAL SESSIONS. Before Recorder Hackett. BURGLARS SENT TO THE STATE PRISON. The first case disposed of this morning was an in- dictment for grand larceny against Edward A. Palmer, who was charged with stealing on the 27th of January an afghan, valued at $100, the property of James Laird. He pleaded gullty and was sent to the State Prison for four years and six months, Peter Dow! was placed on trial charged with bur- glary in the second degree. The circumstances of the case were that on the 2d inst. the prisoner and another young man were found in the entry of Mr. Aaron age eg house, No. 18 East baigh Soper street. hen asked by the servant what they wanted, Dowi said they were inq for Mr. Ebsdon, who lived on the second floor. Ray- mond and the girl let him go, but afew minutes alter- wards the servant followed him and at her requeat he came back. His companion escaped. An oillcer was called in, and when Dowl was searched & smail skeleton key and a card were fqund in his pocket, The card read as tollows:—"First put in fuse and then put in powder;”’ while on the other unl ged ofa ote lang San eso w r & convic at t Gumutdnces showed him to De a resstonal jar. ird degree. Dow! John eng ed ‘was charged with breaking in‘ the shanty of Catherine Yagel, in Fo! hth scree on the 13th of Januar; ded gutity to the th: le of that offence. 6 Recorder sent him to the “nn Sing gg uty to payin, ie indictment alleging that on the 18th of January she - * shawl valued at thirty dollars, the property of James Ryan (a deaf mute), chatged with stout net case of shoes from August Rausch, ‘on the 27th of petty iarceny. last victed ringer and a wore went to the Pealventiaty for six was burg! knives stolen. a ve officer, aided by other men, entered a house in Elizabeth street and bye me the act of counting their clerk in the store cl identified the Jones was sent for jh - irgiars go. Every e! cure their arrest. Chambers, adjourned over until friday, on account of the funeral of the late Mr. James T. Brady to- morrow. Sapreme Court—Chambers. Held by Cardozo, Contested motions will stand over till Friday. Court opens to-day (Thursday) at one P. M. CALENOAR OF THE COURT OF GENERAL SESSIONS FOR TO-DAY. Before John K. Hackett, Recorder. @ People vs, Peter Burke, allas Rioter Burke, harkey, felonious assauit and battery; The vs, Thomas F, Donahue, robbery; The Same vs, Thomas McMahon, burglary; ‘The Same va. John Kelly, Bernard Carroll, robbery; The Same va. James Riley, ennis Cashman, burglary; Tae Same ys. Thomas Ryan, Michaél Loftus, rovbers ‘The Same vs. Desideno Gonzales, felonious assaylt and battery; The Same vs. Thomas Grady, robbery; The Same vs. Mary Jane Tristram, grand larceny; the Same vs. Michael Mulligan. grand larceny; The Same va. John Gregory, Charies Adams, tharies L. Mo John Hadden, burglary; Same " catharine Colson, grand. larceny ‘The 8 vs. Patrick Harrishn, grand larceny: Raymond Cabana, burglary; the Same erly, alins William Kiley, TNhecengs the Tr, felonious assault and bur- e Same va. peter ‘ae x, fanaa larceny; the va. Bridget 0'Ne! Wiliam Towers, grand larceny; the ie vs, Jamés W. Stephens, alias Qqittin, ail Wore grand larceny; we Same vs. Ju. nd larceny; tho Sue vs. Meni Thomas, ; tho Same vs, Amelia Appet, grand vy ae Av pm Schultz, James Gor ar anther A na THE FUNERAL OF JAMES T. BRADY. Notice to the Bar. ‘The committee appointed by the meeting of the bar held on the Oth inst, request that the members of the bar attend at the late residence of Mr. James T. Brady, 126 West Twenty-third atreet, this (Thursday) morning, at half-past nine o'clock, to accompany the remains to th thedral, GENERAL NOTES, Lancaster, Ohio, wants a pettentiary. Five horse thieves were hanged all in a row in Dyersburg, Tenu., lately. Mr. A. IL, Stephens is at Atianta for the parppse of opening an office for the practice of law, In vonnec- tion with his nephew. He will maintain his resi- dence at Leg aye Crawfordaville, bat the mata pertion of his time 1911 “onathan Pick of Mount Pleasan| kely to be spent in Atianta. an old and well known resident t Hunterdon county. N. J., ls dead,