The New York Herald Newspaper, February 4, 1873, Page 5

‘ THE COURTS. THE STOKES BILL OF EXCEPTIONS. Argument of Counsel for the Prisoner— A Long Day’s Session and No Result—The Main Points in the Bill of Exceptions Re- viewed—Case Still On. ° THE JUMEL ESTATE CASE. The Long Eook-Ahead Shortening—Very Little More To Be Testified to, Ad- vanced ‘or Rebutted—Madame Jumel’s Will Put in Evidence. THE PALMER-FOLEY INJUNCTION. Appeal from Judge Barbour's Decision— Motion to Hear the Oase Before the Full Bench of General Term Denied— The Temporary Injunction to Stand in the Meantime. Comptroller Green and. Another Mandamus. An Old New Court House Claim---Officers of the Courts After Their Salaries---Enfore- g @ Decision of the Court of Appeals. TRT eee OT BUSINESS IN THE OTHER COURTS. —_+—_——_ Bummaries—Convictions and Sentences in the General Sessions—Decisions—Death of a Court Official. The Court of Oyer and Terminer, Judge Brady on the bench, entered yesterday upon its February term. A very forcible and most timely charge was deltvered by the Judge to the newly empanelled Grand Jury. He gave Scannel’s counsel one week and King’s counsel two weeks to prepare for trial, and then announced his determination to proceed with the trials of the murderers in the Tombs till he has gone through the list, and further, that in order to clear the City Prison he will sit till next July if necessary. From the late decision of Judge Barbour, at Special Term of the Superior Court, granting an injunction restraining . Mr. John Foley from attempting to assume the functions of Deputy Chamberlain, pursuant to his appointment by the Comptroller, an appeal was taken yesterday to the Buperior Court, General Term. Owing to objections to Judge Barbour, who is one of the judges holding the latter Court during the present term, sitting in review of his own decision, the’ argument upon the appeal was postponed till the next term of the Court. Meanwhile the previous injunction continues till the decision upon the appeal. The tide of mandamuses against the Comptroler Is still at its flood. Three were granted yesterday by Judge Davis, holding Supreme Court, Chambers, and in another case, the latter, however, against the City Chamberlaia, and which was taken to the Court of Appeals, the judgment of the latter Court ‘was made the judgment of this Court, The hearing of the case of George W. Bowen vs,’ Nelson Chase was resumed yesterday in the United States Circuit Court before Judge Shipman and the special jury. Most of the day was taken up with the reception of documentary evidence on the part of the defendant. The testimony for the defence will probably close to-day. Yesterday, in the United States Court, Commis- sioner Davenport rendered bis decision in the case of Colonel Blood, Tennie C. Claflin and Victoria C, Woodhull, who had been charged with having sent through the mails copies of a newspaper edited by them alleged to contain obscene allusions in re- gard to Luther C, Challis. The Commissioner de- cides that, although he is of opinion it was not the intention of Congress, in passing a law dealing with obscene publications, to make it applicable to newspapers, he would hold the defendants to Await the action of the Grand Jury, so that an op- portunity may be given to acourt of law to pass upon the question involved. THE STOKES BILL OF EXCEPTIONS. Legal Quibbles Presented and Judictal Ruling Thereon to Follow—Argument of Counsel for Stokes—A Great Deal of Noise and Little Wool—Argument Still On. e Yesterday, in the Court of Oyer and Terminer, after the business of the February term had been arranged by Judge Brady, and for which two important murder trials are set down—the case of the People vs. John Scannell, for the murder of Thomas Donohoe in November, and the trial of James ©. King for the murder of Anthony F, O'Neill, to follow immediately on the termination of the Scannell trial—Judge Brady vacated the bench, and left its presidency for the motion and argument of counselon the proposed bill of exceptions in the Stokes trial. ‘There was very little interest manifested in the later proceedings of the day—the hearing of argu- ment in the Stokes case—although at the opening of the Court there was a very crowded court room, and the numeroas friends of Scannell and the few fiends that care to follow the fortunes of the uiffor- tunate King made up a large auafotice. Judge Brady occupied the bench of Oyer and Terminer at its opening, which the law required him to do, and after addressing the Grand Jury, fixing the trial of the parties arranged on the calendar to come before him, adjourned his branch of the Court, leaving the consideration of the Stoxes case to be continued by Judge Boardman, ARGUMENT IN THE STOKES CASE. ‘That official immediately called on counsel for the prisoner Stokes to resume argument in further- ance of the motion for a bill of exceptions, Mr. Dos Passos, on whom the heavy work of pre- paring aMdavits, collating from testimony and presenting his points in the best possible shape was devolved, proceeded to address the Court, taking up his points at where they were left off on Satarday. Counsel briefly recapitulated the points previously advanced in favor of the motion—the absence of the Judge and prisoner during dierent portions of the trial, the strong expressions of opinion on the part of jurors, the examination of pistols and of the Grand Central Hotel by jurors and the newly discovered evidence of Mary Bean, He continued his argument, after stating that in the Foster case it had been decided there could be no trivialities permitted, that while tt was very doubtful whether this motion could be made anywhere than in this Court, and that the right Of appeal from its decision was also doubdtiul, the right of the Court to hear this motion was well settied. He quotedon this point avery large number o/ authorities and cases showing that the practice of moving before the Court which tried the case bad been recognized and approved. He also quoted cases to show that this could be done after sentence, In every other State almost of the Union the motion to the Oyer and Terminer could be made on the merits, though he conceded in this State it could only be on irregularities. The Court of General Sessions had by statute, but not by common law, the power to grant new trials even on the merits, Proceeding to the merits, the first ound was the expressed hostility of three jurors. ir. Manchester was shown to have said he would HANG STOKES ANYHOW; to have said immediately before the trial, “If get au the jury on Stokes I will hag him anyhow,” NEW YORK HERALD, TUESDAY, FEBRUARY 4, 1873.—TRIPLE SHEET, And the proof of this was from most respectable men, who were astonished he should, having so strongly shown that he had prejudged the case, have got on the jury. His excuse that one of the re- marks was fea ly did not exonerate him, After he was summoned on the jury he said that he would hang Stokes quicker than hy honing, and this could not be received as a jest by the Court, It was his duty to say to the Court that he had ex- essed his opinion as to be unfit for Soro. As to Kire. Watts’ statement that Yost said that hanging ‘was too good for Stokes, he did not deny it directly. He said merely that he did not know Mrs. Watts, and didn’t believe he had said anything of the kind, Mr. Tremain heré interrupted, saying that he had just discovered that when Mrs. Watts was seeking a medrprered to obtain cron Ly her rent me: ef) signed a paper recommending her as trustworthy, He asked leave to introduce an affidavit of that te A The Court said it did not suppose that could be done without consent of the ether side. Counsel continuing said—Mr. Bechstein did not deny the allegation that he used similar expres- sions positively, but that he did not believe he had used them. That the expression of such opinions unfitted him for the trial of the case needed hardly any argument. It was not merely an opinion of ane a or innocence of the prisoner; it was a fixed conclusion, “Stokes ought to be hanged.” He submitted that under the new act these objections were fatal. it was true that hey be- lieved and testified they could try on the evidence solely, but when it appeared that in that their tes- timony was wrong, that their expressions showed such @ conviction that under the conditions of hu- man nature they could not disregard it, the Court would interfere. This was not a technical matter, and eounsel cited especially on this point the de- cisions of the Unit States Courts, in which the rule is somewhat similar to the rule under the new statute. The English cases cited show that the ex- pression of an opinion, and especially of such opinions as ascribed to Manchester, Yost and Bech- stein, was regarded as much stronger evidence of unfitness in @ juror than mere forma- tion of an opinion revealed by a juror’s own statement. He quoted both American and English law to show that the prisoner was entitled to unbiassed jurors, Counsel then read the statute of 1870, and clatmed that it violated the United States constitution,’ which provided for an im- partial ji for the trial of persons charged with crime. is has not been re-enacted in this State in terms, but our State constitution provided that the right of trial by jury, where it existed at the time of the age of the constitution, should re- main inviolate forever. He arguea that the law was in opposition to the clause in either constitu- tion, and cited the definitions of the word ‘im- partial’ in Webster, ‘without bias,” ‘un- prejudiced,” &c., but claimed that "it was unnecessary to go into a long discussion. The meaning of the word was illustrated in the case of Wiggins against The People, where the Court decided that a man who had made repeated expressions of an opinion adverse to the defeated party, and whom, had the defendant known of his expressions, he would never have accepted as a juror, Was not impartial. The State constitution Iso provided that no one should be deprived of life, liberty or property except by due process of law. He claimed that that meant the common law, and that the Legislature could not interfere with any of the common law rights of a prisoner as to the jurors any more than they could enact that a jury shouid consist of eleven men, or provide that an injured man’s brother might be placed on @ jury. With regard to the Juror Bowles he had made certain examination, and-he communicated the result of his examination to his fellow jurors, Then, again, there was no denial of the fact that Bowles, in violation of the direction of the Court, had read newspaper reports of vbe testimony in the case. Mr. Beach said there was no proof that the Court had made such an order. Mr. Justice Boardman said he had recommended to the jury not to read anything in the newspapers in reference to the case. Mr. Dos Passos claimed that the jury were bound to follow such recommendation, and cited cases to show that the judgment should be reversed because of their neglect. He cited Eastwood against the People eihtogt 25), Where a new trial was granted because one-half the jury, in the absence of the other half, went to the place of the afray and viewed it without the consent of the Court or counsel In that case the jury were merely out for recreation, and it was not pretended that the visit to the scene of the homi- cide had any influence on the jury, and the Court would not inquire upon that point in mere aside the verdict for such irregularity. He quoted decisions of the same general bearing in other States, in whieh the Court refused to con- sider the testimony as binding. He contended that for all the purposes of a fair and constitutional trial the prisoner was not present when the ver- dict was given, and that he was, not present when the jui received "supplemental instructions. Under these decisions it was no answer that the prisoner was not prejudiced, or formal, or techni- cal. But who could say that he was not preju- diced? Whe could say that he could not have sug- gested questions which escaped the notice of his counsel? This right could not be waived by the prisoner’s counsel, That had been held where there had been a formal waiver by counsel, and there were eases where it had been decided the bea could not himself waive it. With regard 0 the JUDGE'S ABSENCE during the summing up of Mr. Beach, the law bade & prisoner to exact all the requirements of the law. He referred to the case of the People vs. White ; which denied that the presence of a quorum of the judges in Oyer and Terminer was all that was needed. But the Court would see that the reasoning negatived the order that the Court | could be complete without any Judge, Ms. Dos Passos closed his argument ai ten minutes to four o’clock when the Court adjourned tull this morning. THE JUMEL ESTATE CASE. The Sait of Bowen vs. Chase—Further Testimony for the Defence—The Evi- dence for the Defendant Drawing toa Close—The Will of Madame Jumel Read in Court. * ‘The hearing of the case of George W. Bowen vs. Nelson Chase was resumed yesterday in the United States Circuit Court before Judge Shipman and the special jury. Mr. Hoar, Mr. Chatfield, Mr. Shaffer and Mr. Saw- yer appeared as counsel for the plamtiif, and Mr. Charfes O’Conor and Mr. J.,C. Carter for the defend- ant. RESUMPTION OF TESTIMONY FOR THE DEFENCE—MB. MATHEW CLARKSON ON THE STAND. Mr. Mathew Clarkson, sworn. Examined by Mr. O’Conor., Witness said :—I reside at Flatbush, Long Island; I was born in Whitehall street, New York, in 1796; I have lived in Flatbush most of my life; I lived in New York up to 1821; until I was twenty- one years of age I lived in Whitehall street with my father; if I was away at all, I was away at school; my father’s house was at the corner of Whitehall street and Pearl street, on the right side of the way coming up from the water; I lived on the block running from Pearl to Water street; lived in that house With my father until I was twenty-five years of age; Iknew of Stephen Whitney living in that street; itis my impression that he resided on the opposite side of the way tomy father; Mr. Whit- ney lived on the right side of the street coming up from the water; my father’s house fronted on Pearl street, as also did Mr. Whitney's house. Cross-examined—I remember that John Lang, editor of the Morning Gazette, lived right epposite to us, The witness named other persorts who lived in Whitehall street. | Jumel, but it 18 quite possible 1 may have heard of him. TESTIMONY OF MR, WILLIAM KEMBLE, Mr. Witiam Kemble’ sworn. born in 1795, in Pearl street, in thiscity; my father was PeterKemble, a merchant; I was connected with the West Point Foundry; my father moved from Pearl street in 1817 to the southeast corner of Stone and Whitehall streets; it was No. 17 White- fetal street; I made orc nr at my father’s house; I went to college in 1809; before going to college I have a recollection of a person living’in Whitehall street of the nante of Stephen Jumel. (Witness pointed out on the map the lecality of the house.) he About how long besore your going to college di Te know of Mr. Jumel occupying that house? A. A number of years from 1804; it was a yellow brick double house, on the northwest corner of Pear! and Whitehall streets, facing Whitehall street ; | 1 was attracted by looking at the peculiarity ot | Madame Jumel’s carriage; it was a light grass reen carriage, in which Madame Jumel used to Grive out; | have seen the lady in the carriage taking @ drive, Cross-examined—I know that Mr, Jumel occupied his house as I do that General Clarkson occupied his own house; I may say that I know Mr. Jumel occupied the house, and as to Madame Jumel I know that she also occupied it by seeing her leav- ing it and returning toit; Ido not think there were any other inhabitants in Mr. Jumel’s house. Re-direct—Carriages were not 80 common in those days as they are now. Mr. Carter proposed to read to the jury the will of Madame Jumel as it had been drawn up by Mr. William Ingiis, This was objected to by counsel for plaintiff; but the objection was overruled, The Will emia other clauses, contained provi- py, ye Pe Giue. and Eliza Jumel Chase’ the defendant, laughter of Mr. Nelson ‘There was also admitted in evidence, after some oppositign from counsel for plaintiff,’ which was subsequently withdrawn, a paper found with the Will above referred to. It was a paper containing the names of relatives of Mme. Jumel handed by wae Mr. Inglis at the time he was drawing her Counsel for defendant also read in will of Madame Jumei, dated APH Ard ‘00. This will was the will which left the pulk ‘of roperty away from Mr. Chase’s family and ‘on ferred it apon gh ged and charitable tutions. It was to break this will that Mr. Chasdjhad insti- tuted a suit in 1866 in the State Court, Mer. Bi ey OF Me pace r. en, & Ia was reci a that wile he was in’ Williamston, N. Ge be made I did not know Stephen | inquiries for one Edward Grimn, and found that there was no such person there living. TESTIMONY OF T. W. EDSELL. Mr. T. W. Kdsell, a lawyer, stated that he went East on the part of Mr. Chase to make inquiries afver Jonathan Clarke, Phoebe, his wife, and Polly and Betsy Bowen; he searched in towns in Massa- chusetts Vermont; he was down there a few days ; found that one Reuben Walker was dead shat before that was at Reuben Walker's house and produced to him the receipt signed Daniel Walker; he went there to trace’ Daniel Walker, Witness produced an old account book, which had been given him by Reuben Walker. The object of this testimony was to identify a receipt that had been put in evidence by the defendant as a receipt signed by one Daniel Walker. The de- fence considered it material to prove this fact. In cross-examination Mr. Edsel] stated that he had received between two thousand dollars and three thousand dollars for his services from the de- fendant for these explorations. ‘The remainder of the sessien was taken up with the intreduc*ton of documentary evidence relating to the marriage of Madame Jumel in 1804, and to the residence of Mr. Jumel in Whitehall street, the latter part being proved, in this instance, by the production of the “New York Directory” from 1801 or 1802 up to 1814, The name of Eliza Bowen, 87 Reed street, appeared in the Directory for 1803-4, and after that it ceased te take its place there. Letters from the Jumels were also read, expressing a kindly feeling towards the Jones family, so often alluded to in the progress of the present sult, Mr. O'Coner offered to read in evidence a letter which had been written by a person named Mum- ford, at Saginaw, te Mr. Chase, informing him that his was going on to New York to testify on behalf of the plaintiff, and stating further that a liberal compensation would seal her \the wife's) lips forever. ir. Hoar objected to the letter on the ground that it was not proved that the wife knew of the contents of the letter. Mr. O'Conor said the witness distinctly said she was in perfect accord with her husband, and knew that the letter had been written. Judge Shipman remarked that, inasmuch as the witness said she did not know of the contents of the letter, he would exclude it on that ground, but he would order that the letter be fled with the Clerk of the Court. The further hearing of the case was adjourned until to-day, when, in all probability, the testi- mony for the detendant will be brought to a close, From intimation hitherto made it ig not unlikely that the plaintiff may offer some evidence by way of rebuttal, PALMER'S INJUNCTION AGAINST FOLEY. e Appeal from Judge Barbour’s Decision at Special Term to the Superior Court General Term—Argument Upon the Ap- peal Postponed till Next Month. Keeping in view the fact that two temporary in- junctions have already been granted in the pend- ing legal controversy between Chamberlain Palmer and Mr. Foley, and that one or other of them is al- most sure to be before the Courts nearly every day in one form or another, it requires pretty vig- ilant watchfulnees not to get them. The injunc- tion coming to the surface yesterday was that granted on behalf of Mr, Palmer against Mr. Foley, prohibiting him from any attempt to assume the duties of Deputy Chamberlain on account of his appointment by the Comptroller. It will be remembered that Judge Barbour, holding Special Term of the Superior Court, granted this inyunc- tion. This result was not satisfactory to Mr. Foley, and at the time of rendering the decision notifica- tion was given of an intention to appeal from the decision to the General Term. The latter term en- tered yesferday on its February term—Judges Bar- bour, Curtis and Seagwick on the bench, Mr. Anthony R. Dyett, counsel for Mr. Foley, .submitted in due form the papers necessary for erfecting his appeal. He called atteution to the fact, however, thas Judge Barbour, who has granted the injunction from which the appeal was taken, was a member of the appellate Court, As His Honor had granted the injunetion, he did not deem him competent to sit in review of his own judgment, He asked, therefore, that another Judge sit in His Honor’s place pending the argu- ment on the appeal. Judge Barbour said that such had not been: the practice of the Court, and he saw no necessity of making an exception in the present case. Mr. Dyett said he was willing to have the argu- ment before the two remaining Judges, but he was aware this could not be done without the con- sent of the opposing ceunsel. Ex-Judge Edmonds, counsel for Mr. Palmer, in- la that the case should be heard before a full ench. After some further remarks it was finally deter- mined to put the case down for argument at the March term of the Court, and meantime till the decision upon the appeal the temporary injunc- tion granted by Judge Barbour ordered to stand in full force. MORE MANDAMUSES, An Old Cleaner of the New Court House and Two Superior Court Officers After Their Salaries—Writs of Alternative Mandamus Granted Against the Comp- troller—Enforcing @ Decision of the Court of Appeals. The machinery of mandamuses is still kept in lively motion. More applications for writs of per- emptory mandamus against the Comptroller were made yesterday vefore Judge Davis, at Supreme Court, Chambers. Mr. John McCabe was the first applicant. He invoked the aid of the Court to compel the Comptroller to pay him $600, for ser- vices rendered pursuant to an appointment from the Board of Supervisors, as one of the cleaners of the new Court House, The claim was that the appointment was perfectly legal, that the services were performed and that he is entitled to his pay. The other two applicants were James Doyle and Thomas Feeley, who ask to be paid their salaries as officers of the Superior Court from May1 to June 11, 1872. It was stated that they both received their appoint- ment some time previous to,the date mentioned, that they are still employed as sueh officers, that they have continuously discharged their du- ties as such officers from the respective dates of their appointment up to the present time, and that, with the exception of the mterval mentioned, they bave been regularly paid their salaries. The further explana- tion was that at the time referred to there was a dispute between the Superior Court judges end the Comptrolier as to which had the power of ap- | pointment, and that pending such dispute their | salaries were withheld. The Court. listened to quite an extended argument in each case, but would only grant writs of alternative mandamus, which the opposing counsel, though rather re- . luctantly, agreed to accept. This gives the Comp- troller an fee tt to make @ return to each writ, when they will come up for further argument | on an order to show cause why peremptory writs of mandamus should not issue. Scarcely had the above case been disposed of when Mr. W. ©. Trull asked that the judgment of | the Court of Appeals in the case of Phineas H. Kingsland vs. Mr. Palmer, City Chamberlain, be made the judgment of this Court. This will be re- membered as an application for judgment of $3,208 for services as Clerk of the Commissioners of Rec- ords. At the Special Term a decision was rendered in favor of the City Chamberlain, This decision was reversed at the General Term, when the case was carried to the Court of Appeals and the de- cision of the latter Court sustained, Judge Davis granted the application, and ordered that a peremp- tory writ of mandamus issue directing payment of the money, with interest irom May 45, 1871, BUSINESS IN THE OTHER COURTS. SUPREME COURT—CHAMBERS. Decisions. By Judge Barrett. Thomas Kine vs, Mary Farrail et al.—Motion granted, Beling va Degraw et al.—Motion for an extra allowance denied, without costs. Hart vs. Cauldweil et al.—Order for counsel. Mutual Life Insurance Compary vs, Finch.--Same. McGay et al. vs, Green et al.—Report confirmed ana order granted. Kavanagh vs. The New York Catholic Protectory, &c.—Keport confirmed and decree granted, SUPREME COUNT—SPECIAL TERM. Decisions. By Judge Barbour. Strong vs. Woodward Steam Pump Manufactur- bs Company.—Order for judgment. abloner vs. Cassanova.—Motiom granted. Gersel vs. Schneider.—Order granted. Brown vs. New England Mutual Life Insurance Company.—Judgment for defendant on demurrer. COURT OF COMMON PLEAS—~GENERAL TERM. Decisions Upon Cases Argued During the January Term. This Court met yesterday and rendered decisions upon cases argued during the January term, The following are the decisions :— John A. Eagleson vs. James K. Sproll, impleaded, &c,—Judgment as to Sullivan claims reversed ; new trial ordered; costs to abide the event, Opinion by Judge Robinson. dohn Hughes vs. The Mercantile Insurance Com- any.—Jadgment afirmed. Opinion by Judge rremore. Roderick W. Cameron vs. Frank Derkheim.— Jadgment affirmed. Opinion by sudgs eninscn, Anson Bangs vs. The Biue Ridge iiroad Com. pany et al—Demurrer overruled; order appealed rom affirmed, Opinion by Judge Larremore, Sheridan vs, Charlick,—Motion for liberty to go to Court of Appeals granted. Opinion by Judge Joseph F, ay 2 William E. Smith vs, Benjamin Dougtass.—Judg- Ment reversed and new trial ordered; costs to abide event. inion by Judge Robinson. McKeller vs. .Seigier.—Judgment reduced to one Month’s rent.and aitirmed as to that, and rescinded as to the residue. Opinion by Judge Loew. Weinberger vs. Fauserback.—Judgment versed, Opinion by Judge Loew. Hubbell vs. Schreyer.—Judgment affirmed as for the extra work done by Muldoon for Schreyer, and reversed as to Hubbell except as to the materials furnished within three months, an@ affirmed to the extent of these materials. Referee’s findings upon Muldoon’s claim reversed unless Muldoon consents to reauce the judgment to $833. Opin- ions by Chief Justice Daly and Judge Robinson. Alkers vs. Rohde.—Judgment affirmed. Opinion by Judge Joseph F. Daly. jurray vs, Vi Bia paement affirmed, Opinion by Judge Lawren: Brenahan vs. Darrier.—Judgment affirmed. Opin- ion by Judge Joseph F. Daly. Miller vs. Post.—Appeal dismissed without prej- udice to rehearing on all the papers, Opinion by Judge Lawrence. James va, Stewart.—Judgment affirmed. After rendering the above decisions the Court ad- journed sine die, COURT OF COMMON PLEAS—SPECIAL TERM. Te- Decisions. By Judge Loew. Henry Bowland ys. 8. C. Ryder.—Motion granted. J. D, Menell vs. J. J. Higgins.—Motion to vacate order of arrest denied. R. Howell vs, H. H. Murtaugh.—Motion denied, §. Beer va. N. Vanderworlbach.—Same, J. D. Phyfe vs. J. P. Olmstead,—Same. Van Allen Pugsley vs. H. P. Hunt.—Same. Rebecca Reilly vs. H. A. Reilly.—Limited divorce. J. C, Lane vs, E. M. Lane.—Divorce granted. COURT OF GENERAL SESSIONS—PART t Before Recorder Hackett. Opening of the Term—The Grand Jury Discharged Ti the 17th Inst. ‘The February term of this Court was opened yes- terday, His Honor the Recorder presiding. As there was aGrand Jury empanelled in the Oyer and Terminer the Grand Jurors summoned for ser- vice in the General Sessions were discharged till the third Monday, the 17th inst. The Clerk pro- ceeded to call the panel of petty jurors for both branches of the Court, and those summoned for Part 2 were directed to attend at the Chamber of the Board of Aldermen, where His Honor Judge Sutherland will preside, An Assault and Battery. Thomas Bourke, who was indicted for attempting to rob George Bourke on the 19th of January, pleaded guilty to assault and battery. As there were mitigating circumstances His Honor sent him to the Penitentary tor six months, Alleged Robbery—The Accused Honorably Discharged. The first case called to the consideration of the jury was an indictment for robbery preferred against Thomas Donohue and Thomas Brown, who were charged with stealing a silver watch from Frederick Windhorn, in Secoud avenue, on the night of the 26th of October. Brown pleaded guilty at a former term of the Court to ‘larceny from the person and was sent to the State Prison. ‘The testimony agaist Donohue showed that he did not act in complicity with Brown, and, having established his good character by witnesses, the jury rendered a verdict of not guilty without leaving their seats, Another Case of John Dean and His Mary Ann. The next case was a charge of assault and battery against a brawny Irishman, who gave his name as John Hughes, and during the progress of “the trial some novel and interesting facts were brought out. The complainant was a genteel-look- ing young lady, who gave her name as Mary Ellen Moore, and stated that she resided at 150 East 127th street, It seems that the accused was her step- father, that her mother was rich, and, for some reason or other not developed in the course of the examination, Mrs. Moore married Hughes, who drove her coach. The young lady swore that on .the 2lstof November Hughes seized her by the throat and squeezed her. The defendant testified in his own behalf and said that he was married to Mrs. Moore on the 17th of August, and that on the day in question Miss Moore was in the act of throw- ing a lurge dinner bell at him when he caught her arm. He denied the allegation made by the com- plainant that he squeezed her, although she was corroporated by a servant. ‘The jury, alter deliberating for an hour, rendered @ verdict of not guilty. An Assault. James Maloney, who was charged with aiming a loaded pistol at Edward Murtaugh on the 20th of December, pleaded guilty to a simple assault, The circumstances showed that Murtaugh was pursu- ing the prisoner, who threatened to shoot him, but before he fired a policeman knocked the pistol out of his hand, The Recorder in passing sentence said that so long as he presided in the Court he would punish the wanton and reckless use of the pistol and Knife to the fullextent of the law. As the pistol went off by accident, and as the circum- stances did not show that Maloney intended to «io the complainant any injury he sentenced Maloney to the Penitentiary for one month, Larcenies, Daniel McLoughlin, charged with stealing $100 from Barney Mullon on the 4th of December, pleaded guilty toan attempt at grand larceny. Alexander Messager, indicted for petit larceny from thesperson, pleaded guilty to an attempt to commit that offence, On the 2ist of December he stole a silver watch, worth $10, from Gotlieb Lay.” These prisoners’ were each sent to the State Prison for two years and six months, Alleged Conspiracy by Residents of North Carolina—A Nolle Prosequi Entered on the Indictment. Om motion of District Attorney Russell a nove prosequi was directed to be entered on an indict- ment preferred in April, 1868, against George W. Swepson, Robert R. Swepson, E. Nye Hutchinson, Robert F, Hoke and Thomas J. Sumner for con- spiracy to defraud Thomas J. Carter by represent- ing that certaia lands in North Carolina were more valuable than they really were. Mr. Russell in- formed the Court that there was.a civil suit pend- ing, but that it had never been prosecuted to judg- ment, His Honor granted the motion, JEFFERSON MARKET POLICE COURT. Burglary. William Thompson and Frank Shuttenberg were charged with burglary, in entering various houses in the Nineteenth precinct during Jast summer, while the families were in the country, and steal- ing much valuable property. Officer Mullen had received information which pointed to them as the ilty parties, and arrested them on Sunday even- ng at @ house in Greene street. A valuable clock, worth $500, and Other property, tor which an owner is desired, were recovered by the officers. The prisoners were remanded to await further exami- nation. Grand Larceny. Mary Farrell was charged with stealing $500 from Mrs. Jane O'Neil, of No. 422 West street. A bank book was introduced showing that Mary had deposited a similar sum in a bank in South Brook- lyn. She claimed it was aportion of a legacy leit her by deceased friends in Ireland, but was com- mitted to answer. Samuel Thomas Tripp, a negro, was charged with stealing @ coat, valued at $60, from William Pryor, of No. 90 Wooster, street, He was lockéd up to answer. DEATH OF A COURT OFFICER. Mr. Andrew Kelly, for several years past one of the oficers of the Court of Common Pleas, died yesterday, He was a cousin of ex-Sheriff Keily, and by his faithfal discharge of his duties and marked Gareee courtesy had endeared to himself a jarge circle of friends, The funeral will take place to-MOrroW. COURT CALENDARS—THIS DAY, Surrewe Court—Cracvit—TriaL Term—Part 1—ield by Judge Barrett.—Nos. 1008, 634, 263, 1076, 1080, 1082, 1084, 1086, 1092, 10924, 1094, 109434, 1096, 1098, 1100, 1102, 1104, 1106, 1108, 1110, SUPREME CotrtT—SPRcIAL TerM—Hela by Judge Van Brunt.—Demurrers Nos, 32, 35, 38; law and fact Nos. 1, 2, 3, 4, 6, 7, 8, 9 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, '24, 25, 26, 2%, 28, 29, 30, 31, * 32) 33, 34, 36, 3 36, 87, 88, 39, 40, 41, 42, 42%, 43, 44, 45, 46, 47, 48, 49, 50, PREME COURT—GENERAL TERM.—Nos. 120, 180, 182, 258, 188, 189, 192, 194, 195, 196, 197, 198, 199, 200, 201, 203, 204," 206, 206, 207, 208, 210, 212, 215, 6, 217. ae PREME Court—CuambErRs—Held by Juage Da- Bd, 47, 57, 97, Call 102. Surea T—TRIAL TERM—Part 1—Held by Judge Monell.—Nos. 1890, 493, 1231, 1825, 1129, 1671, 183, 1609, 1871, 1435, 479, 1307, 1471, 1261, 377. Part 2—Held ‘by Judge Van 'Vorst.—Nos. 876, 2020, 1512, 1388, 782, Court OF COMMON PLEAS—TRIAL TeRM—Part 1— Held by Judge Robinson.—Nos. 1696, 2790, 112444, 866, 50, 1366, 68, 1598, 1061, 1156, 874, 2498, 1721, 763 506, 2807, 1247, 1864, 1903, 1685, 512, 1649, 612, 613, 1618, 1092, 1644, 3044, 50, 1709, 164, 328, » 200, 1256, 1599, 1760, 1617, 1986, 481, 1337, 2921, 1512. Court OF COMMON PLEAS—TRiIaL Term—Part 2— Held by Judge Loew.—Nos, 40, 1706, 1760, 1761, 1789, 1762, 1767, 1768, 1770, 1771, 1772, 1777; 1780, 1781, 1783, Court OF COMMON PLEAS—Equiry Tenm—Held by Judge Larremore.—Nos. 13, 17, 23, 34, 61, 58. ; by MARINE COURT—TRIAL Tav—Part J—Held Indge Spaniding.—Nos. 1334, 1737, 516, 912, 930, 032, 941, 944, 948, 946, 963, 956, 988, 1004, 1035, Part 2— Beid by Judge Shea.—Nos, 1106, 1103, 1243, 1247, 1365, 1415, 1280, 1901, 1367, 1275, 1917, 1269, 1411, 1425, 707,’ Part 1—Held by Judge Joachimson.—Now. 602, ate tier 1192, 1278, 1228, 1114, 1104, 494, 1272, 1318, BROOKLYN COURTS. UAITED STATES COMMISSIONERS’ COUAT. The Special Tax. Before Commissioner Winslow. Michael McGoey, of the corner of Jay and Tillary streets; John Gallagher, of No. 252 Bridge street; Ernest Seeback, of No, 62 Tillary street, and Henry McKenna, of Hunter’s Point, were before the Com- missioner yesteraay on the charge of selling liquors and cigars without paying the special tax required by Lg ‘The eases were adjourned until next month, SUPREME COURT—SPECIAL TERM. Kelsey, the Tarred and Feathered—Re- manding the Accused Parties. Justice Montfort, of Huntington, L. L, held Royal Sammis, George B. Banks and M. Candius Prime to await the action of the Graud Jury a short time sMce, on the charge of being implicated in the tarring and feathering gf Charles G. Kelsey, who disappeared frem that place several months ago. After the action of the Justice an effort was made by the counsel for the accused to have them dis- charged. A writ of habeas corpus and certiorari was obtained from Judge Pratt, of the Supreme Court, before whom the case was argued, and the case Was reported in the HERALD at the time, Yesterday morning Judge Pratt rendered a de- cision, discharging the writ and remanding the accused, In his opinien, the Judge says :— ‘The only question to be determined in this proceeding is whether ‘the defendants are entitled to be discharged upon a writ of habeas corpus. The writ of certiorari pro- vided by statute is concurrent remedy with that of habeas corpus and is a substitute for the latter where the per- sonal attendance of the prisoner is not required. It ig also occasionally {ssued simultaneously with the writ of habeas corpus to obtain @ more definite and full return of the cause of imprisonment or detention ot a party. It is conceded, on the part ot the prisoners, that the imprisonment ‘ig under actual process valld’ upon its face, and that it was issued by a magistrate having jurisdiction. It is not controverted that the finding of he Justice thata “crime had been committed” ie fully warranted by the evidence. The magistrate has further determined that there is probable cause to believe the Prisoners guilty. and has accordingly held them for the action of the Grand Jury. This last finding the relators claim is not supported by the evidence, and hence they should be discharged. The practice 1s’ now well settled that the merits of a trial before a committing magis- trate will not be examined upon a writ of habeas corpus, when there is no suggestion that he has mistaken the law or exceeded his jurladiction. The writ of habeas corpus is not given for an appeal and review, but simply to try the isgue whether the purty Is Alegally, de- rived of his liberty, Under the present pracuce, as [ have above stated, the prisoners are not so restrait a, Dut are held upon a commitment regular and valid upou. its face, and regularly issued and served in the course of 4 judicial proceeding. The jurisdiction of the Justice who acted in this matter 1s unquestioned. Whether he adhered with technical accuracy to the rules of evidence or dis- carded some and gave undue credence to other testimo- ny are guestions not opan to review in this matter. 1am not called upon to define what are the exact powers of the Supreme Court at common law, or a Justice of the same under our statute to give relief against Unjust imprisonment, as this record shows nothing that would justity an interference on my part, assuming my power to be all thatis claimed by the relators. A due administration of justice requires that this writ shall be discharged and the prisoners remanded to await action by the Grand Jury. Ordered accordingly. BROOKLYN COURT CALENDARS. 1596, 1572, 1482, 1940, 1608, 560, 1578, 1288, 314, 1084, | SurReME CourT—Crncurr.—Nos. 51, 182, 482, Cry CouRt.—Nos. 21, 22, 81, 32,’33, 34, 35, 36, 87, 38, 39, 40, 41, 42, 43, 44, 46, 48, 49, 50, 52, 53, 54) 55, 06, 57, 98, 69, G1, 62, COURT OF APPEALS CALENDAR. ALBANY, Feb, 3, 1873. The following is the Court of Appeais day calen- dar for February 4:—Nos, 56, 90, 91, 583g, 12, 47, 93, THE BURYEA HOMICIDE. Further Testimony Taken Before the Coroner Yesterday—The Inquest Again Adjourned. The adjourned inquest in, the case of John E, Simmons, charged with the killing of Nicholas Duryea, was resumed yesterday afternoon, at two o'clock, in Bellevue Hospital The attendance was larger than at the previous hearing, the large hall in which the investigation was held being com- pletely filled with spectators. Those present were, for the greater part, policy dealers, the majority of them being friends of the accused man. The Nedow of Duryea was present, attired in deep mourning, attentively watching the progress of. the hearing. Mrs. Duryea, from her demeanor and’ appearance, seems to be a perfect lady, and much sympathy was manifested for her. The prisoner —— THE GREAT STONE OF THE TOMBS, a on Justice Demands That It Be Rolled Away and Its Oceupants Brought Forth for Trial, Murderers’ Row to Give Forth All Its Culprits. Judge Brady’s Charge to the Oyer and Terminer Grand Jury. Prompt Trial of All Parties Charged with Murder. Scannell To Be Tritd Next Monday—King on the Monday Following. At no period in the history of the criminal courts of this city has such grave importance attached to the assembling of the Court of Oyer and Terminer’ as at the present time. Upon the spirit manifested by the’Judge depended results of incalculable ine terest—results determining whether the use of the pistol, knife and bludgeon is to be restricted; whether murderers are to have meted out to then the prompt punishment their crimes merit ; whether’ citizens can walk in public streetsfor ride in public’ vehicles feeling that they can rely on the egis of the law for protection. The opening yesterday of the Febroary term of tha Court gave assurance, happily, of th results and corresponding terror to the indicte murderers now filling the City Prison, Judge Brady, always prompt-and unytelding in the dis charge of his duties, showed himself the right m: in the right place, It is unnecessary to say tha ‘the court room was crowded to its utmost cay city, the expectation being that Scannell, Kin, and some of the other indicted murderers no’ confined in the Tombs would be arraigned for trial. In this respect the crowd, however, was disa pointed, for Scannell was the only one brought into Court; but, though the centre of observation, he paid no heed te it, but chatted im the gayes! mood imaginable with his counsel, EMPANELLING THE GRAND JURY, First in order ater the formal opening of thes Court, which POOR Fab) promptly at ten o'clock, w: the empanelling of the Grand Jury. One more juro' appeared than was wanted, but as one of the others! wished to be excused from duty the permanent! organization of the jury was easily and speedil, accomplished. The following are the natnes of thai Grand Jury:—Foreman, Hugh Auchincloss; John! Campbell, Aes ers, Robert C, Livingston, Jus-; tus L. Bulkley, Samuel 8. Sands, William H. Phil-j lips, Jacob Goldsmith, William H, Knochfel, Jerom B. Ransom, John Endicott, Charles H. Kerner, Ed. ward A. Baldwin, Bernard Smith, John F. zebley, William L., Andrews, David W. Bruce, James Pinkney, John J. Sinclair, George Law, Jr., B. Lor~ rillard Harsell, Jacob Caproa, Bobert M. Fink-! hauser. CHARGE TO THE GRAND JURY. Judge Brady, rising, proceeded at once to chargay the jury. He spoke with slow but solemn earnest- ness, and every word was listened to, not only byt the members’ of the jury, but by the immense! throng filling the court room, with the most eager attention, His charge was as follows:— GeNTLEMEN OF THE GRAND JuRy—The oath just admin- isteréd to you expresses, perhaps, the best manner in which yoware to discharge your’ high and responsible duties. "You are to present no‘man through envy, hatred or malice, and you are to excuse none through fear, favor or affection, You are placed as SENTINELS OF THE STATE to watch, in some manner, over the actions and characters of your fellow citizens. Your duties are, very solemn, and are to be executed with great caution and care. The presentment of a citizen under indict: ment must not be done on hearsay evidence; but as to that you must be advised by the District Attorney an; his assistants. On the other hand, you should present no man on remote probabilities or unsubstantial testimony.) Still no persons, no matter how high their social, political or professional position, should be exempt from indict-} ment for offences. Inte ce, energy and perseverance in the proseention of rs against the law are the: best safeguards against the lawless. You should remem. ber that auty delay in the prosecution of criminal justice emboldens leaders to a lessening of rexpect for the Courts, If it was necessary, all the power of the State should be brought to bear to STAY THE MAND OF CRIME, By their indictments they were to teach those who pres sumed that they were above the law that the statutes could not be defied with impunity. As to the use of th was brought in upon a stretcher, as he ts still suffering (rom the effects of his fractured leg. He was as tenderly cared for as a baby, more than half a dozen attendants waiting to do his bidding. Colonel Fellows, ex-Assistant District Attorney, was present on the part of Simmons. The people were unrepresented, Windham Stryker, who was examined before, was first placed upon the stand and asked a few unimportant questions, which did not contradict anything he had previously sworn. Charles Anderson, of No, 211 East Firteenth street, clerk in the General Post Office, register de- | partment, was next examined:—I left the Post Office on the 16th of December about seven o'clock P.M. 9 gO up town; as/ turned to go up Nassau street HEARD A ORY OF POLICE; land several other parties ran toward the door. step, from whence the cries came; when I arrived opposite Sutherland's restaurant I saw the ufen on the sidewalk, one kneeling on the top of the other; I stepped up to see what the matter was; just as 1 stepped over to see what was going on Simmons ot up; as he was getting up he exclaimed, “Now. Fhave got the best of you;’’ he attempted te step backward and fell right on the street; he ex- claimed, “I have broken my leg; some parties came forward and = assisted tum into Sutherland’s; saw no mevement of either party; saw no blows or stabs given nor any instruments in any one’s hands; after- wards saw the instrument which was taken to the Station house; a short time afterwards I@and several others went into Sutherland’s, when the police came up and arrested Simmons; some con- versation passed between the witness Stryker and the prisoner; could*not hear what it was; some- body said, in answer to an inquiry, that two men were near being robbed Cy Ras Liberty street; I think the person who said that was Stryker; did not hear Simmons say anything. * To a Juror~ I don’t remember whether Simmons said,*I have broken my leg,” or “My leg is broken.”? Richard J. Hoban sworn—I reside at 156 Broad- way; Iam a clerk at 16 Exchange place; on the Tow of December I was at 69 Liberty street, when I Lai arow on the street; there seemed to be severa PERSONS MAKING A NOISE; they were talking loud; I went down stairs to the street and saw two men on the ground; the de- cl d was underneath and the prisoner was on of him; I saw the prisoner rise a little and stab the deceased with an instrament which giit- tered in the light; I then remarked he was stab- bing him with something; he stabbed him several times around the head somewhere; I cannot tell | where else he struck him; I was sure he was stab» | bing him, for saw the instrument glitter; 1 then heard the prisoner say, ‘Now I have got the best of you;” alter saying that he got up; in getting up his foot got entangled with the foot of deceased, and he fell back wards into the gutter, exclaiming, “I have broken my ankie; he was then lifted up and carried ever to Sutherland’s; I went for the police; on going I_ met Officer Webber, and I said, “Come around en'Liberty strect, THERE JS A STABBING AFPRAY;” he came around with me to Sutherland’s; the pris- onor did the stabbing with his right hand; that is all I know. To a Juror—I could not tell when the prisoner raised himself up whether there was anything the matter with his leg or not. William Heaton was next examined:—I board at No. 7 Franklin street; I am @ steel and copperplate printer; | was a witness to the occurrence on Lib- erty street on the evening of the 16th of December; 1 was working at 65 Liberty street, on the second floor; 1 heard a noise in the street, as if there were several men engaged in a row; I heard somebody hollooing “Police! police! and “Murder!” sev- eral times; I then went down stairs and saw two men lying on the sidewalk; one was on the top ef the other; 1 never saw either man beiore that night; just as 1 got up there I heard the man that was under say, “Let me up, G—d d—n you:’+ he seemed to be straggling to get up, but could only move his head backward and forward and kick; the man on top then raised himself up, and held the other man with his left hand while he struck him with his right some place about the head, a8 | thought; Isaw the arms of the man who was ‘underneath fall out straight from him; his head dropped to one side; the upper one raised yinself up on his left hand and looked at for a moment or two; the man undern moved; the man on top then again, and ashe did so I hand Wsomething in his GLISTEN IN THE GASLIGHT; he then struck the other man again some place around the body; the legs of the man underneath gave a few quivers; the man on top then got uj and got out in the street; he staggered and fell upon his back, his nead toward Nassau street; he turned Rimself over on bis side and called out “pili” three or four times; a man came up then and helped him into Sutherland’s; I then went up stairs and went back to my work; I have identified Mr. Simmons, the prisoner; he was the one who was on top. At the conclusion of the testimony of this wit- ness the inquest was again adjourned until to-day, ‘The repeated delay caused great dissatisfaction to those who were present, as the evidence could all have been takes yesterday, pistol and knife, ithad become almost a mere matter of, amusement. The pistol and the other weapons named by the law as deadly should be prohibited, unless to aa- thorized officers, and the carrytng of them'should be puns ished severely, except in case of men of tried and proved sgoodners, and'to whom a license ought to be granted. ‘his matter might well, in the presentcondition of our prisons, and in relation to persons contihed for MKS OF VIOLENCE. RE ¥ elf for deliberation, and for energetic and rem. ress 1 Pital action. ‘iis Honor then briefly charged them as to thelr organization, and keeping secret indictments found for felo itil the accused isin custody. He closed b: telling that their deliberations might be rotracted ; that the exigen of the hour demanded it, In conne tion with the present term Of General Sessions; and If 80s, it would be continur with id of other Judges. had made up-his mind, however, that if other Ju could not be found in this city, and’ there was need of » continual Court, he would sit until July nextit neces sary. At the conclusion of the charge the Grana Jory retired, TRIAL OF SCANNELL AND KING, Mr. Phelps, District Attorney, stated that the case of Stokes was then Sotapring his attention: before Judge Boardman, but he desired to an- nounce that a8 soon as he got through with this matter he sitould be able to proceed at once wit! the trial of John Scannell, indicted for the murde! of Thomas Vonohue, and then with the trial of James C, King, indicted for the murder of Anthonys F, O'Neil. Appearing as counsel for Scannell were Rf A. Beach, Charles 8. Spencer and Williany . Howe. Mr. Freooes asked that two weeks’ time be per mitted the counsel for-preparation. They had @ great number of witacsses to examine, and the nature of the defence was such that fully that length of time was necessary. He would stipux late to try the case two weeks frem to-day. Mr. Beach urged that fully two weeks intervene before the trial be commenced. Justice Brady remarked that the state of the public mind was such that it made it desirable that ‘the trials of persons accused of crime, and particu~ larly of homicide, should be approached speedily, as possible, He would set down the trial of Scan- nell for next Monday, and that of King for the Monday following. Mr. Howe earnestly appealed for a farther Mig but, after listening patiently to thé conclusion, Honor said that he could not change the time. Mr. Beach urged further that in the case of King they were not yet prepared. It was very impor-: tant to the prisoner that testimony as to men- tal condition should be introduced, and that in- volved the bringing of witnesses from ether States. The various counsel more persistently urged delay, but it was of no use. Judge Brady refused to change his decision. The Court then adjourned till this morning. COUNSEL FOR SCANNELL. The defence ip the Scannell case:ifes in counsel's hands well conversant with criminal jurisprudence. Very many of the late murder and homicide cases, es latier of a gross character, have been tried by em. SCALY IMMIGRANTS, Half a Million Salmon Eggs from the Rhine for the Hudson and the Connec- tieut—A German Present to the United States. Professor Spencer F. Baird, Assistant Secretary of the Smithsonian Institution and United Stated Commissioner of Fish and Fisheries, accompanied by his Private Secretary, Mr. H. E. Rockwell; Dr. J. H. Slack, State Commissioner of Fish and Fish- erties, of New Jersey; Dr. Hurson, State Commis~ sioner on same subject, of Connecticut, and Mr. Seth Green, of this State, the great cultivator of shad, salmon and other fine fish, are in the city, awaiting thé arrival of a valuable lot of salmon eggs, 500,000 in number, from the River Rhine. Two hundred and fifty thousand of these were pur- chased for our government at about $40 per thou- sand, The other quarter of a million is @ present to the United States from ,the govern- ment of Germany. Mr. Rudolph Hessel, a. German scientist, Who has devoted man. years = t the art of cuitiv: fis! most suitable for food, comes in charge of the deli- cate freight. The greatest care is necessary in transferring the eggs, in their present condition, especially in a severely cold climate like this at this season, While they require the usual temperature of their natural element a nippi frost ht kill them. They will be conveyed ym the rman steamer the moment she arrives, facilities having already been made at the Custom House to transfer them at once, in the Bay, to a government steamer. for early distribution and conveyance to the batcti-” ing houses at Newcastle, on the Hudson, and to similar places on the Connecticut River, Thoso two places, tt is understood, will receive each one- haif of this quota of the precious seed of the genus< salmo. Salmon eggs are becoming quite an articia of commerce, Dr. Slack has several thousand young salmon from the Sacramento, which are to be pl in thd Susquehanna. Horatio Seymour and Hon. Robert B. Roosevelt, member of Congress of this city, Come missioners of the State of New York, will join Prot fessor Baird and the other Commissioners upon thi arrival of Mr. Hessel with his precious charge. Th Pha lett Bremen on the 16th of January and now due,