The New York Herald Newspaper, June 11, 1873, Page 3

we oe beet metas L:Thethecision of ztlié Court of Appeals > Delivered’ Yesterday Granting the Slayer of Jim Fisk a Third Trial. TEXT OF THE DOCUMENT. a rs A Brief Resume of the Great Cause Celebre. CRIMINAL GOSSIP IN THE CITY. Talks with the Prisoner and His Counsel in the Tombs, ——— THE COMING TRIAL. A New Battle To Be Fought on the Old Ground. Yesterday morning the community was startled by the news that Edward 8. Stokes had been granted a new trial, The decision of the Court of Appeals was anxiously looked for, but it was generally expected that it would be adverse ‘to the prisoner. Public anxiety might properly have something to do with the matter, as public epinion had set strongly in against the prisoner Rotwithstanding the clear evidence in lis favor. ‘The decision of the Court of Appeals is very gratify- ing, inasmuch as it shows that the stay of proceed- ings granted by Judge Davis was entirely legal, according to the view of affairs presented to the Court of Appeals. There are many who wonid have wished that the decision might have been otherwise than what it was, but the Court of Appeals had to decide upon points of law, and private consid- erations were, for the time being, completely set aside. There is probably no case in the history of criminal jurisprudence which has excited so much interest as that of Edward 8S, Stokes. Edward 8. Stokes had been the friend of Fisk, and they had had extensive business transactions together; but Fisk got the better of Stokes in those transactions, and took what Stokes alleges ‘to have been a mean advantage of him, and got from him the greater part of his property. Fisk ‘was enamoured of Josie Mansfield—a bold, unprincipled woman. When Stokes discovered that a greater part of his property was gone he determined to have revenge. He was handsome and a man of insinuating address. Fisk, before his rupture with Stokes, introduced the latter to his FAIR INAMORATA, and the result was an attachment which soon ripened into a very warm feeling. The affections of Josio were transterred from Fisk to Stokes. Fisk, however, was not a maan to be easily balked. He determined to have vengeance upon her; andina short time after her desertion of him he had an action for blackmailing and libel brought against Stokes. ‘Tho immense influence which Fisk possessed at the time operated powerfully in his favor. Public opinion ran high between the contending parties. Aiter a number of desultory skirmishes there was agreat field day at the Yorkville Police Court on January 5, 1872, Josie Mansfield, the Cleopatra of the case, appeared in Court, and on both sides there was an array of talent such as is rarely seen. Miss Mansfield was put upon the stand, examined ‘and cross-examined. In her cross-examination, ‘which was conducted by Mr. Beach, the humiliat- ing confession was forced from her that “when Fisk first met her she had but ene dress in her pos- session.”” The woman who was proof against all accusations against her morality and virtue was so powerfully affected by the insinuation about her wardrobe that she wept bitter tears of rage and shame upon the witness stand, This was THE BEGINNING OF THE END. ‘The next phase culminated in a tragedy, the news ‘of which was flashed all over the city, to the effect that James Fisk, Jr., had fallen by the hand of Edward §. Stokes. New York has rarely been 80 profoundly agitated as it was upon that memorable Saturday afternoon. The social position of the victim and the relation in which he stood to his slayer riveted public attention, and the community was convulsed with excitement. Stokes made no effort to escape from justice, but quietly surrendered himself to the police. Party feeling ran high. The dead man, notwithstanding his faults, had many friends; for he had been lav- ishly generous with his wealth, and had done much to facilitate the comforts of the travelling public, while Edward S. Stokes belonged to a highly respectable family, many of the members of which had long occupied honorable positions in the mer- cantile circles of New York. The verdict of the Coroner’s jury consigned Stokes to the Tombs to aWait trial. In the latter part of June, 1872, the trial of the alleged murderer was commenced. Alter a protracted hearing and an immense display Of legal taleut the jury were discharged, being ‘unable to agree. The disagreement of the jury was generally regarded as A TRIUMPH FOR STOKES. His second trial was called on at the close of Jast year, the same counsel appearing on his behalf who had conducted his case on the previous arraigment, though Judge Boardman officiated in place of Judge Ingraham. The case was ably argued on both sides, In the summing up the charge of the Judge was rather unfavorable to the prisoner, who was found guilty by the jury and sentenced to be hanged on the 28th day of Feb- ruary. His counsel, nowise dismayed, immediately applied for a stay of proceedings, which was un- expectedly granted by Judge Davis. The action of the learned Judge was severely commented npon at the time, and there were many who aid Not hesitate to say that the stay had been ob- tained by corrupt measures; but the high integrity and legal ability of Judge Davis proved a sufiicient ‘glzrautee for the purity of his conduct. The case was then taken before the Supreme Court. The decision of the Court was adverse to the prisenit and, as a last resource, the case wag taken to the Court of Appeald, at - che ‘Stokes and his friends felt that this was ~~ ane fast CHANCE, | ee a nd consequently a desperat ight was tnade to * ve the canvicted man from the gallows, Lyman Sremain made a powerful argumeut in behalf of the prisoner, and prodyced convincing arguments upon certain points of law ruled upon iM Judge Boardman. District Attorney Phelps replied, and after the argument had deen exhausted the Court decided to reserve its decision. There was much Bpeculation as to what the final determination would be. It was most generally believed, not. withstanding the powerful arguments which had teen adduced, that 13 would be detrimental to the prisoner’s welfare. The result has considerabiy astonished the public, although they were not alto- gether unprepared for it. The Court of Appeals tert reversed the decision of the Supreme Nourt, and yesterday morning the news circulated ‘with rapidity throughout the city that Edward 8. Stokes had been granted a new trial, The Decision of the Court ot Appeals. ‘The following is the text of the decision of the Court:— dh JUDGR GROTER' [NION. Edward 8. Stokes, plaintiff in error, vs. tne People of Bhe State of New York, defendants in error. essrs. Lyman Tremain, John Dos Passos and Cephas Brainerd, for lain tf in error. lessrs. Benjamin &. Phelps, District Attorney, and in. Fullerton, for the people, defendants im error. Having carefully examined the six pleas in abatement, ete bias) plaints? in error to the indictment to Avhich the trict Attorney demurred, upon which sed phd Raed hed sustaining the demurrers, and ar- iving at the con jon that there was nothing conti cy any of these entitling him to judgment quash- ug the indictment, or to any other reliel, we and if so wha! m before the jourt, ar t to intervose ‘aisimilar charac: ma i rh Por was eounittea, if ir Was com: Ewe of 1e72 18 constitu: rimine this qi constitutional and vi A alid, it of n e counsel for ioe of trial by jury is secured y ‘constitution, ht of trial by 1 assume correctness of the latter p ition, ct of the Legisiature 4 viding for the trial otherwise than by a common law 24 compored of twelve men would be uuconstitutional al veid, and any act requiring or authorizing such trial by a jury partial and biassed against either party would be a Violation of one of the essential elements the jury re- Jerred to in and secured ya constitu “ya ‘The cou nsel insists that the act in question does compel be tried by a jury partial and biased ‘That the common Jaw held that having formed or expr ‘an opinion conclusively proved & eee ljettge ie ‘principal cause, without juror upon a challenge for a inquiry'as te whether this would influence his wction as ‘a juror. The authorities upon the question were somewhat con- flicting, and the object of the statute was to prescribe a defuite rule. The act provi hat the previous forma- tions, or expression of an opinion or, amp! yn in refer- upon which any crimina! ac- tion at law is based, or in marion 80 Rg or cence of the prisoner, or @ present op! o es sion in reference thereto, shal ‘be a sufticient ground oe ee tepaity qualided to serve. a3 & otherwise legal trial of ‘such, setlon, Rrovided the person proposed as a juror who may have formed or expressed, or has such an opinion or impression as aforesaid, shall de- clare on oath that he veri Y, believes that he can render an impartial verdict according to the evidence submitted to the jury on such trial, and that such previously formed opinion or impression will not bias enhance, his ver- dict, and provided the Court shall be satisfied that the person so proposed as @ juror does notentertain such a present opinion ag would influence his verdict as a juror, It will be seen that the intention of the act was not to Piece. partial jurors upon the panel, but that great care ence to the circumstances erson who is was taken to prevent such a result. The end sought, by the common law was to secure a aed that would impartially hear the evidence and re: ler a verdict thereon aninfuenced b: considerations whatever, If the 0 plished. by make oath than he can do this, Irrespective of re- vious or existing opinion or impression. Not sal led that this Seay, be sarels Telied upon, on account of the difficulty of determining by a person having an opinion or, ,linpression how far he may be unconsciously influences ereby, vat joes er and "provides “that ‘the Court shall” be satis- le a propor as = @ juror does not entertain such a pregent opinion as would infu- ence his verdict as.a juror. Surely this latter provision, rightly and intelligen if tty administered by Court, will afford protection to the accuse a Cg fee 4 from injury right, after challeny Bence cane has been arerralen ties e rf nd have this tried and ‘determined, unintiu- ‘the decision made by the former charge. While fhe constitution secures the right of trial by an impartial ty, the mode of procuring and empanneling such Jury, is regulated by law, either common or statutory, prin- cipally the latter, and it is within the power ‘of the Legisiature to make, from time to time, such changes in the law as it may deem expedient, taking care to preserve the right of trial by an impartial jury. The opinion of Chief Justice Nicholson in Bason va. The Stave of Teunes- gee is cited in opposition to this view. This opinion was given upon the constitutionality of the statute of Tenney fee upon the same subject but differing from that in this State. By the Tennessee statute it is provided that the juror shall be competent, ifthe state on oath that upon the jaw and testiinony on trial he belioves he can give the accused a tain and impartial tial. This statement is made c ive of the question. ‘The counsel for the Secused further insists that the offence etiarged having been perpetrated, if at all, prior to the passage of the act, itis not to be applied in the trial of this case if held. constitutional, but only to cases arising thereatter. This position cannot be sustained. While no ex post farto law is valid, this hax no application to the rules of evidence or the details of the trial. These nay be changed as to prior, equally with subsequent offences, The counsel for the accused offered to prove that the deceased, a short time betore the occurrence, had made violent treats against him, such as that he “would beg- gar him first, and then kill him;” “Igo prepared tor him all the time; so sure as in Fisk will kill himy? “fC would ki would a ferocious dog.” by the prosecution and rejected by to, which the counsel for the accused excepted In determining the competency of this testimon; must be borne in mind that evidence bad becn given making Ita question tor the jury whether the case was one of excusable homicide, upon the ground that the act was perpetrated by the accused in defending himself against An attempt by the deceased to murder or inflict some great bodily injury upon him, and the farther question Whether it was Tiot perpetrated in resisting an attack made upon him by the deceased from which he had reasonable ground to apprehend a design to murder or iiftict upon him some great bodily injury. Evidence of threats made by the deceased, which had been communicated to the accused, was received by the oul Proof of the latter facts was competent, as tending to Sreate a belief in the mind of the accused that his lite was in danger or that he had reason to apprehend soine great bodily harm from the acts Hons would cause upon this ? would make an attempt to execute them probable when an opportunity occurred, and the more ready beliet of ‘the accused would be justified to the precise nt of this probability. But an atiempt to execute @ threats is equally proba- ble when not communicated to the party threatened when they are so and whe: i is whether the attempt was we see NO reason for excluding them im former that would not be equally cogent for the exclusion of the latter, the lat- ter being admissible only for the reason that the person threatened would the more readily believe himself en- dangered by the probability of an attempt to execute such threats. Threats to commit the crime for which @ person is upon trial are constantly received as evidence against him, as circumstances proper to be considered in determining the question whether he has, in fact, committed the crime, for the reason that the threats indicate an inten- tion to do it, and the existence of this intention creates 4 probability that he has iu fact committed it. Had the deceased just prevbus to his going into the hotel where the transaction oicurred declared that he was Rote there to kill the accuwed, and that he was p pared to execute this purpo< we think the eviden Would have been competent ujon the question whether he had in fact made the attemg when that question was litigated. And yet there is M principle no difference between this and the testimony offered and rejected. The diflerence is only in degree, ‘We are not aware of any dection of the precise question by the Courts of this State, bu there have been several in accordunce with the tbove views in other States. (Keever vs. The Stae, 18 Georgia, 194; :Prit- chette vs. State, Alabaad, 89: Cainpbell vs. People, 16 Illinois, 17; Cornelius va. Commonwealth, 15 B. Monroe, 539. In Jewett v¢ Bunning, 21 N. ¥., 27, it Was held’ that in an action or an assualt and battery, alleged to have been commited by the defendant upon the plaintiff when no witneses were present, proot of previous ill will by the det@dant aguinst the plainuil Was competent a8 & circumsance tending to show the commision of the acts chargd by the detendant. This accords with the view abovitaken. I think the testi- Tony offered Was competen and the exception to tts exclusion well taken. The efor was one prejudicial to the azeused by depriving hin of the right to have com- petent testimony in his tavor onsidered by the jury, and cannot be overlooked by the Ourt, Jeunle Turner was introducd asa witness by and gave material testimony for the acused, With a view to iin: pair the credibility of her tstimony she was asked by the proscution, upon cross-exaination, whether she t not left Mrs, Morse, by whon she had becn employed, Without her knowledge or conent, and whether she did not take things not belonging » her when she left. ‘The prosecution Was permittd to prove, by Mrs, Morse, that her testimony in answer # these questions was un: true, to which the counsel of te accused excepted. This was error. Upon cross-examination the prosecution had the right, for the purpose ot impairing te credit of the witnesses, to ask questions as to those coliteral matters, but having asked and obtained answers, tust abide by the answers giv fact the f n; other witnesses could ot be catled to prove such Answers untrue. (Lawrence vssaker, 5 Wend.. 301; How- ard ve. City Fire Insurance Copany, 4 Denio, 02.) It cannot be said that the acused ‘sustained no injury from this, ‘The direct tendenciof the incompetent testi- mony Was to impair the credigiven to the testimony ot his witness. We think the mutes of the Grand Jury, showing that an Indictmer had deen orderé that body, against the Acused upon the coin- ot Fisk’ for — blacmailing, were —im- properly received. There Ws no proof tending to show that the prisoncr hadany knowledge of any tuch acon by the Grand Jury. he evidence bad there- fore no tendency to show @ moti of the prisoncr for the killing of the deceased. ‘The prigner had testified that Knew Fisk had been trying to gi him indicted for, as he Underst yoouspiracy with arther tu blackmail him; but that, as he understood, he fatd to procure one. The prosecution could hot re evidence tending to show that the prisoner had ten guilty ot any other crime than the one for which hewas on tria The only effect of the minutemat I can see was to sat- isty the jury that there was evidice of his having com: mitted some other crime of suchogency as to induce the Grand Jury to indict him therer. The prosecution had uch evidenes. Iud tne prisoner known nd Jurvt ‘ould Sor Mag the de , and be- ‘tre would have been no ing ft. ous other exceptions We taken by the counsel for the prisoner upon the trial tthe rulings of the Court upon the admissibility of evidee We have examined these, and arrive at the c@lusion that none of them’ require, discussion. Ney the " Sudee “charged the jury & follows:— of the guy ng cn this Poel Hrwer serie dt ecoines the duty o! il ecores the dry nied the TAWppae tmnsty from the tact of killing under the circumstees, In the absence of explanation that it was manslauger in the third degree or justifiable homicide, becduse# I have said, the tact ¢ kK Ming being conceded, A tl 4 oe Bap moti rom ve circu rogecutor's: ts quhy ay entirely, a of nary therefore you Ye ito reasonable doubt as} tIt, unless the prisoner shall give evidence sufMicielt to you tl Justifiable under the circamsancest the case,” ‘ To chage counsel for the ‘We have examined this por- tion of the charge t detemine whether the idea intended to coveyed to the jury, and Fed eld lowe, tihretrom, was’ | that the law implied that the acof killiig was thurder when perpetrated under the cirenstance of the present case, or whether such was thelegal fnplication trom the proof of Killing, in the abnce of sroot of the circum: stances of its perpetration, whichthe case of the pros q cirely mide oui, unless the risoner had salistied thenha€ it wis not murder which he law would imply fromae fact of the killing, We think a careful examinaticnf the entire portion. of tl charge excepted to will shethat the latter was the idea fatended ob conveyed, d that the jury must have so understood it. from the opinions delived it was the Justices ‘of the Supre Court at General forts, This view is confirmed by } fact that the circumstances attending the killing in. thpresent case were contro- verted questions, to be detnined by the jury jgfromn evi- 6 PI dence more oF less conflict, as claimed rose. ithorize at it was this portion of th excepted. he hall not exainine whether these proceedings are before ig Court properly for review upon the cer ri issued ud the return inade thereto. The same licable to the seventh as jouned by the replication of the District Attorney, hich was tried before Mr. Justice Cardozo, upon which ¢ direc! dict for the people. The testimony dis- losed no tending to show the invalidity of the in- ictinent, and the plaintiff in error was not Injured by e disposition of the matter by the Judge, oy Whellug te augytiums thus attempted 1g be raised are ark is @p- lea. upon which an issue of tact cution, such as would full jury of all the facts constitng the crime of the first degree, as claimed the prisoner, sue authorize the jury to find ‘homicide excusable. It can bardly be supposthat, under suck proof as to what the circumstances rly were, the Judge intended to charge the jury that | law implied the crime of murder trom proof of killiunder the circumstances of the case, and upon such pf such an instruction would NEW YORK HERALU, WEDNESDAY, JUNE I, 1873—TRIPLE SHEET. from, the proof of killing the deceased by tne Pi r, and that upon this proot they should find him fig of that crime, unless he had givenevidence satisty- them that it was manslaughter orexcusable homicide. ‘his is turther confirmed by what immediately follows the portion of the ci excepted te. The jn Afe- ceeds to instruct the jary ae follows: —/Onaiaarly, ly and properly, In ‘case Gisposed’ to and should give. th any reasonable doubt that m: donot Know that even thus igal If the evidence shall be donbtfu shall entertain reasonable doub' evenly balanced #0 you du Bot Kno Pt, le prisoner would be enutied to cen’ a jaw implied ti the first from the proof of killil unl risoner satisfied them it Aves not murder, the benefit of e doubt to be given to soner would not have been restricted to thelr, finding, the evidence, evenly al fo that they, did not know where, the trut yi on the contrary, the instruction would have been not to convict of that E crime unless convinced by all the evidence in case that was and fut exami ail the ‘evidence’ fett in their minds they shot ive the uittsl, “This instruction art ot the cha crime of mu only, unless the 0 Ox- jer in eto Be, Sm a8 tor Rogue Ye, Chapman: ©., SA; a V8. Kes 2 Cox Crim, Gases, '« Commonwealth ¥ York i. This rule can be vpheld by authority, only as vious! in contravention of principte and the ai it ts a mi law that it resumed until the contrary is proved. How is gui lablished by proof oe one of tal to conslitute crime ‘the ‘ingredients esse To constitute crime there must not only be the act, but also the criminal intention, and ‘these must concur, the latter being equally essential with the former. Actus non reum sea mens is a maxim of the common law. The intention may be inferred from the act, but thisin principle is an inlerence of fact to be drawn by the jury, and not an implication of law to be ap- plied by the Court. But thi tion in this case is not what was. pe ‘ule of the cominon law as to the implica- tion of malice from the act, whether such rule is trom authority or priciple and legal Kearny ge 1e Gues- tion arises upon the statute of the State whieh homi- cide is made justifiable or excusable, murder in the first or second degree, or manslaughter in one of four degrees determinable by the intention and circumstances of perpetration. Under the statute it is obvioua that mere Proof that one has been deprived of life “4 the actofan- Sener iseuy, fails to show the class of the homicide under e tute. Section 3 of title 2of the a in what cases fs ‘fomielde when perpetrated by as individual shail be rf Section 2 of title 1, as amended by the act of 1872, pro- vides that such killing, unless it be manslaughter, ex- usable or justifiable homicide, shall be murder in the e first degree in the following Fire—When perpetrated from a premeditated design to effect the death of the ppraen Killed or of any human being. It was under this provision that the prosecution sought to convict the prisoner. To justity such convic- tion it was necessary for the prosecucion to prove all the tacts bringing the case of the prisoner within it. Mere Proot of u dling did not asa legal implication show is. It might still be murder in the second degree, man- slaughter in some degrce or justifiable or excusable he sistent with such proof, yr to instract the fury, that the law implied all these from the proof of the killing. The correct- ‘ness of this has rarely been questioned since the enact- ment of the statute. Hence there has been but little said by the Courts upon the said sustains it (People ald vs. People, 37 N. Y., 4 520; Wilson va People, 4 ‘were correct in tl White. 37 N. ¥., 405: People vs. Wiley, 3 Hill, 194) ‘e have exai whethersit docs so show. (find ti udge cor- eatly charged the jury As to the tuets necessary to con stitute the crime of murder in the first degree, and further that he correctly Instructed them that the people must prove all these facts to authorize the jury to ren- der a verdict convicting him of that crime, ut how does this cure the error of the instruction that the law implied all the necessary auditional facts from the proof of the killing? | It was in effect instruct- ing the jury that although the people must prove all these facta, yet they one so by _ proving the killing, and by that tho case of the pros ecution was’ fully and entirely made out, and that this proof made it the duty of the prisoner to satisly them that it was not murder which the law would imply from that proof, thus in effect instructing the jury that the proof of ' the killing costs the burden "of proof upon the prisoner to show that it was not murder, but manslaughter or justifiable homicide. No such bur- den of proof was by that castupon the prisoner. (Lamb ys. C, and My .¥. 8. C, 4 y i ‘The further instruction to the jury, to the effect that the law required no particular length of time between va, Di mined the entire charge to determine le i the J forming the design to kill and the act by which the death was effected, had no relation to or bearmg upon the int in juesuon. ye jury may, as matter of fact, find design to kill from the act by which death was effected, and all facts, except that of the killing itself, required to constitute murder in the first degree, by proof of c which convince them of the truth of such. are to pass upon the whole case, inferring fi root of other facts which convince thelr j ¢ truth of the facts inferred, bearing in 1 Durden of proof is upon the prdsccution as to all the facts Recessary fo constitute quilt during the entire trial, and that their verdict should be the conscientious expression of their convictions derived trom idence. It is unnecessary to pam upon any of the questions arising upon the offer of the pla in error to assign error in fact upon the judgment As to these we will simply remark that we think they were properly disposed of upon the motion for a new trial. But tor errors in rejecting competent evidence offered by the prisoner and in receiving incompetent evidence against him, and in the part of the charges excepted to, the judgment must be reversed and a new trial ordered. JUDGK RAPALLO’S OPINION, Tam sattsfied that the conviction in this case cannot be sustained without the violation of settled principles of Jaw,-and It necessarily follows that I must vote for m re- versal. While concurring in the reasons assigned by in: learned associate for coming to the same conclusion, will briefly state the considerations which to me seem controlling, Independently of the numerous. other hi en discassed. It is a cardinal that the burden Prosecutor, and that it. ; including that of the ce as*well as ot the prosecution, the jury entertain a reasonabl |, he is en- fitled to the benefit of that doubt, jury must be sat- the whole evidence of the guilt of the accused, and itis clear error to charge them when the prosecution has made out a prima facie case and evidence has been in- troduced tending to show a detence, that they must con- vict unless they are satisfied of the'truth of the detence. Such a charze throws the burden of proot upon the pris- oner and subjects him to a conviction, though the evi- dence on his part may have created a reasonable doubt in the minds of the jury as to his eullt. Instead of leaving it to them to determine, upon the whole evid whether his guilt is established beyond a reasonable doubt, it constrains them to convict unless they are fully satisfied that he has proved his innocence. The charge in thix case was, in my judgment, calcu- lated to convey to the Jury that’ erroneous rule for their uidance. They were ‘virtually instructed that, the Kill- Ing Leing conceded, they should convict of the crime of imurder unless the proofs adduced by the prisoner satis- fied them that the circumstances under which the killing took place were such asto justify his act or reduce tho rade of his offence. Though upon the whole evidence hey might be In doubt as to what the circumstances ly were, the kiliing being conceded, this charge indi- cated that it was their duty to convict. The language of the charge to which exception was taken is as follow: “The fact of killing In this case being substantially con- coded. it becomes the duty of the prisoner hore to satisty you that it was not murder, which the law would imply rom the fact of the killing under the circumstances in the absence of explanacion that it was manslaughter in e third degree or justifiable homicide; because, as I ave said, the fact of killing being conceded, ani the law implying malice from the elrcumstances of the case, the prosecution's case is fully and entirely made out, and, therefore, you can have no reasonable doubt as to’ that unless the prisoner shall xtve evidence sufficient to sat- My soe. that it was justifiable under the circumstances of the case.” Argument seems unnecessary to demonstrate the error of this charge. It was a necessary part of the case of the Prosecution to establish that the homicide was perpe- trated with a premeditated desiun to effect the death of the person killed; yet the Court, assuming to determine what the circumstances of the killing were; solemnly tn- structed the jury that the fact of killing being conceded, the iaw implied malice from the circumstances of the cage, and that the case on the part of the prosecution was tully made out, and that the Jury could nave no reason- able doubt as to that, unless the evidence on the part of the prisoner satistied them that the killing was justifiable. ‘The Supreme Court, in sustaining the judgment of the Courtot Oyer and Terminer, do not attempt to defend the legality of this charge. ‘On the contrary, the very able opinion of Judge Fancher conclusively demon- strates upon authority that itis at variance with numer- ous adjudications and the settled law upon the subject. Butitisciaimed that the error may be overlooked on the ground that the prisoner was wot prejudiced there- by, and cases are cited which decide that where it ap- rs to the Appellate Court that error has been com- mitted, yet that the error could not, possibly pre- judiced the party complaining, it wilinot be made a ground of reversal either in civil or criminal cases. In all these cases it will be found that the Court has been exceedingly carcful so to limit this rule as to render it applicable only where by no possibility could the error have produced iniury, and even this was an innovacion upon ancient rules under which it was a matter of ind that the into Its materiality. Thateo vitalan error as one which should or might mislead the jury on the quesiion as to the party on whom the burden of proof rested could Kory of those which could not poss bly prejudice th terinination of the case is utterly inadmissible. Short of an unequivocal retraction ot that portion cl id have removed trom the mindser the ju whieh It was catcnlated to produce ng portion, of the charge, and ator fe tor their guidance in their ‘The fact of killing was, as they were told, con- They were further told that it was. the d fe prisoner, to, antiaty: them that this killing was not r. That the law implying malice from ihe ¢: - ste. the jury a simple ru! thon. sof the case, the prosecution’s case was full entirely made ont, and therefore the g sonable doubt as (0 that, unless the evidence on the part of the prisoner satisfied them that it was justifiable under the circumstances, Their inquiry was thus reduced to whether they were satisfied of the truth of the alleca- tions on the part of the defence. If they were in doubt ethos Lips eee tque or pot they were bound to con- home seems to have steack the mind. of the tearned Judge at the time that the rule thus laid iyrn by him en- trenched somewhat upoy the principle that apaner Was entidied to the benefit ou A seasanabie, dow ha he Immediately followed by sta at Ordinarily juries should give the prisoner the benefit of ahy doubt that may exist in the cass and that he did not know that m exception to that rule, and he pro wtfuct them generally upou'the subject of dou possible that we should kuow whether these in- 5 eradicated trom the minds of the ury the erroneous tinpression calculated to be produced wy.the previous portion of the charge: ana we cannot therefore, pronounce asa conclusion of inw that it had no influence upon the verdict. Whether under a proper charge the jury would have come to the saine resultitis not within out province to decide. The determiaation of the tacts rests wholly with the jury, Itis for the Court to instruct them ax to the law, and these instructions they are bound ty follow. If ally erroneous itis the tinperative duty of the ap- te tribunal to grant a new trial, All the Judges concur. Interview with Edward 8. Stokes. Perhaps out of the many thousands who heard of the decision of the Court of Appeals in the case of Edward 8. Stokes, the prisoner himself was the least astonished, He isa man of great nerve, and in the darkest stages of his trials has never despaired. AS soon as the news arrived in the city that a new trial had been granted, the wel- Stokes in the Yombs. His aged father was one of the first to hear the good tidings from Albany, and have becn erroneous. | Thestruction tn effect was, ang he Jury st have so wndlood it, that the law implied motive @ capsequguuy crime of murder jn the irst * ~ he at once repaired to the prison to congratulate his son, Tne meeting wee @ jovful ong though course to reverse when error appeared without inquiring | me within the cate. | fing | come intelligence was immediately conveyed to | Stokes, with the calmness habitual to his nature, received the intelligence with cool complacency. About eleven o’clock Mr. Dos Passos, who has been so indefatigable in his loyaity to the prisoner, arrived at the Tombs and confirmed the pleasant news. The prison oMcials were rejoiced to hear that Stokes was to have another chance for his life, as he has been always quiet and courteous, and all with whom he came in contact sincerely sympathize with him, Warden Johnson sald that he was not at all surprised at the news, having always expected it. Yesterday morning, before the decision arrived, the warden had @ conversa- tion with the prisoner tn his cell. THR PRISONER'S CONFIDENCE IN HOPE. Stokes said :— “Well, Warden, when do you think the decision awarding me a new trial will come? Do you think At will come before Friday?” “1 dot know,” replied the Warden, “it may possibly not arrive belore September.” Stokes then said:—“Well, it has got te come; they (can't @o anything else but give me a new At noon a Heratp reporter called at the Tombs and by the courtesy of the Warden was immedi- ately permitted to see the prisoner. Stokes was in the council room, and with him were his jather and Mr. Dos Passos, He did not seem to be un- usually elated, but exhibited his usual sang froid, He was dressed in a suit of dark Tweed clothes, and had dispensed with a shirt collar on account of the calidity of the atmosphere. He very wiltagty acceded to the request of the reporter to grant him A FEW MINUTES’ CONVERSATION, which was as follows:— REPORTER—You seem to take the decision of the Court of Appeals very quietly, Mr. Stokes? Sroxes—Well, [have expected no other decision for some time; my last trial was notoriously untair, On many points, which were decidedly in my favor, the Judge ruled against me, and his charge to the Was more the speech of an advocate than a judge. 1 always expected that the Court of Appeais ‘would set aside the trial, and I am, thorefore, not at all astonished. REPORTER—Do you intend to fight upon the old ground next time? A NEW BATTLE ON OLD GROUND, STOKES—Yes, we will fight upon the old ground, but shall have a much stronger case. Some of the evidence adduced upon the last trial will be omitted and new evidence which has unex- Reaaaly turned up will be substituted in its stead, am confident that if 1 have a fair trial 1 am sure of an acquittal, and I think that the next trial I have will be a fair one. Mr. Dos Passos, interrupting, said he would do all in his power to make it so. Stokes continued—Don’t you think they will admit me to bail ?”” Mr. Dos Passos—Well, I don’t know; but I don’t think it is probable. SroxEs—Judge Boardman must feel pretty bad this morning at the decision of the Court of Ap- eals. He is on the verge of re-election, and that the reason which made him go so hard against me. 1 knew all along that Judge Davis was right and that he would be SUSTAINED IN THE END. Tam satisfied now that I am safe, and that at my next trial justice will be done. ; ,REPORTER—Mr, Stokes, how is your health? ‘STokes—I never felt better in my life. 1 am in perfect health and in good spirits,asil have beon all through, At this stage of the conversation some visitors were announced, and Mr. Stokes, bidding the re® porter a cordial ‘good day,” hastened to meet them, His hair has turned very gray since his in- carceration ; but he is active and cheerful, and his step has lost none of its youthful elasticity. Interview with Stokes’ Counsel. The reporter subsequently had a conversation with Mr. Dos Passos upon the technical points of the case. That gentleman said:—‘Mr. Stokes has never been encouraged by his counsel to consider that the decision of the Court of Appeals would be favorable, though we had the most unbounded confidence in the result. The points of law to which exception were taken were so strongly in our favor that the granting of anew trial was al- most a@ foregone conclusion, and the short time that the Court of Appeals took to decide upon those questions proves that we were right in our surmises. The ruling of Judge Boardman against the prisoner is almost unparalleled in the higtory of criminal jurisprudence. At the com- mencement of the trial Judge Boardman was in- clined to be very impartial, but when the evidence jor the prosecution was all over there was a marked difference in the rulings of the Court. Almost every point was decided against us, and the charge—the most important part of all—had a powerful influence upon the jury. We were, how- ever, convinced that our cause was right, and the decision of the Court of Appeals you see sus- tains us”? OUTLOOK OF THE NEW TRIAL. Rerorter—What do you tnink will be the result of the new trial? Mr. Dos Passos—Well, as lar. Stokes says, the chances seem decidedly in our favor, You see on the first and second trials public opinion was strongly excited against us, on account of the re- ports oi the murder which were published in the hewspapers. Those accounts, though written in all good faith, no doubt, were proved to be incor- rect ou many points, and the public are now be- ginning to perceive they were unintentionally misled, is there any ssibility that the hanged upon the next trial? Mr. Dos Passos.—We don’t want to change the venue, and the prosecution has never done so in this State. In the celebrated Polly Bodine case the venue was changed three times by the defence, but I know of no instance in which the prosecution changed it. Idon’t think that the case will be taken out of this circuit, Revorrer.—Is it not an unusual thing for the Court of Appeals to set aside a decision of the Su- preme Court? COURT OF APPEALS AND SUPREME COURT. Mr. Dos Passos.—Oh, no. ‘Tne judges of the Su- Rena Court are men of ability, integrity and learning, but their judgments have been frequently set aside by the Court of Appeals, for instance, in the Polly Bodine case, which I just now alluded to. There are many other instances in which the Court of Appeais has decided seeine the Supreme Court. RePoRTER—Don’t you think you will have a difl- culty in procuring jurors on the new trial? Mr. Dos Passos—No, I don’t think so, Iam cer- tain that jurors will have less hesitation in pete upon the next trial than heretofore. The excite public feeling which prevailed in this case has toned down, and the same prejudice which pre- vented jurors from serving on the last trial will not exist on the next one. All things considered, Tam confident that the final result will be the ac- quittal of my client. I have no idea when the case will be called on again, but whenever it comes we are prepared for it, ‘and the new evidence we shall produce will greatly astonish the public, The same counsel who have adhered to Mr. Stokes through the previous trials will appear in the next one. There was an immense rush of visitors to the Tombs yesterday, and Warden Johnson said he ex- pected the life would be worried out of him for the remainder of the week. He has decided to admit no one without @ pass to see Mr. Stokes except near relatives. The reporter, after conversing with Stokes and Mr. Dos Passos, strolled through the prison and conversed with Sharkey, Simmons and King. They are all in high spirits that a new trial has been granted to Stokes, The excitement connected with the late Walworth | tragedy was completely obscured by the receipt of the decision of the Court of Appeals in this iamous case yesterday, . PHILADELPHIA, Pa., June 10, 1873. A party of police this afternoon boardea the bark J. B. DuMeld, of Yarmouth, England, which arrived this afternoon from Liverpool, via Sydney, N.S., and arrested the second mate, named Benja- min Palmer, twenty-eight years of age, charged with killing John McDonnough, a seaman. The affair occurred on Sunday morning last, off Cape May. McDonnough happened to be in the way of the second mate while attending to some duty, and the latter becoming angry, knocked McDon- nough down and kicked lim in the stomach, McVonnough lingered for hall an hour, when he died, and Was buried in the ocean the same after- noon. ‘The second mate and four men were arrested and locked up for a hearing to-morrow, The men gre hela as witnesses, a ‘ The as ape co this peut in Dating NATIONAL RIFLE ASSOCIATION, The Opening of the Range Island—Approaching Competi The National Rife Association have decided to invite teams from the detachment of the regular army and the navy (both mariners and sailors) stationed in the vicinity of New York, to partici- pate in the competition at the opening of their Tange on the 2ist instant, and it is understood that the invitation will be accepted. The Engineer Department in particular pride themselves in pitt Saenen and are desirous of being repre- it i. ‘he Association are about making arrangements to keep both rides and ammunition on the ground atalltimes for the use of their members, the ag to be liired out amd the latter sold at cost price. The grounds, both now and upon the day of the Match, are open to tie public, but no one is al- lowed to shoot who does not exhibit his ticket a8 a member or competitor to the range keeper. The trains to Creedmoor leave Hunter's Point, via Central Ratlroad of Long Island, at 8, and 12 A. M., and 2, 2:40 and 4:06 P. M., connecting with the boats leaving Thirty-fourth street, East River, fifteen minutes, and James slip half an hour pre- viously. Returning, leave Creedmoor at 9:24 A. M. and 1:48, 4:61 and . M. The running time from Honters Point to the Tange is about half an hour. * THE DUELLO. Virginia Society Convulsed by the cent Du a@ecai—The Seconds on Tr! Public Indignation. RICHMOND, Va., June 10, 1873, The recent duel here between McCarty and Mor- After the first excitement following the announcement of the fight had subsided the sudden demise of Mordecal, one of the principais, struck terror into the decal has created much social commotion. hearts of the seconds and their friends, while the entire populace spoke out in condemnation of the duelio, There was little sympathy expressed for Mordecai, and there is less for McCarty, the sur- vivor, The seconds—Messrs. Royall, Trigg, Meredith and Tabb—have been for some weeks past paying the penalty of their chivalric exercise of friendship in one of the prisons of the city. OF course these gentlemen belleve, every one of them, religiously, that they will be acquitted directly they are brought before @ Court. Their immediate friends indulge this pieasant expectation aiso; but there are some who believe that “what is sauce for the goose should be sauce for the gander,” and that when the law declares a certain act murder, when its commission is proved, the Courts should ratify the edict. Whether the Court will do so re- mains to be seen, The Commonwealth's attorney, Captain George D. Wise, has assured the public that he will do his duty, and should he feel so dis- posed he can be energetic enough to make all the defendants wish they had NEVER SEEN A FIELD OF HONOR. The class of society (the bon ton of the city) to which they belong, and of whoin they are very fair exponents, are unanimously in favor of not only acquitting them, but also of applauding them to the skies for their chivairic action. But this can- not be said of the mass of the people—the bone and sinew—the merchants, the mechanics and others of the community. These latter lave an abiding taith in the law of the land, and they wish to see the laws executed; and, moreover, they do not 100k upon the duelista through the most favor- able spectacles, “If it were one of us,’ they say, “how quick he would be punished; but because these are ‘bloods’ they must be let oi,” This is the sentiment in the city. THE SECONDS REFUSED BAIL. To-day was set down for the appearance again of the seconds in Court, and, agreeable to the con- tnuance, they were brought before Police Justice White at about ten o'clock, Dr. J. 8. Cullen made oath that Mr. McCarty, the surviving principal, was unable to appear because of his wounds, upon which, by agreement of coun- hres Uns case Was further continued until the 16th of July. Justice White was then about to recommit the seconds to jail, when the counsel for the defence, who were reiniorced by Henry A. Wise and others, moved that the seconds be allowed ball, This motion was frefused by the Police Justice on the ground that he had not heard the evidence in the case; but, he added, he would go into an examination of the witnesses. Several of the witnesses were then examined, the testimony es the ta duel nad been fought between Messrs, Mordecal and McCarty; same as heretofore reported—t! ; that Messrs. Royall, Trigg. Tabb and Meredith were the seconds; that Mordecai was since de- ceased and McCarty was lying at his residence dan- gerously wounded. The Court was thronged by the friends of the seconds, who were allowed the privilege of shaking hands and conversing freely with them. The Commonwealth's Attorney, Colonel George D, Wise, opposed the motion to bail in a most forcible, logical speech. The array of counsel for the accused made eloquent appeals to the Justice in behalf of their motion, At seven o’clock the examination closed, when the Justice announced he would reserve his decision until to-morrow morning. It is now the opinion that the seconds Will be bailed, Mcvarty still remains at his mother’s residence, and, th by daily improving in health, is yet una- ble to walk @ step, and may not be able to appear in public fer months. It is hardly probable that he will be present at any time during the promised trial. The young friends who volunteered to keep him constructively a prisoner and were sworn in 8 special constables for that purpose have given away to a prom policeman, who is regularly re- ieved, and maintains his watch and ward with mathematical precision. THE NEWBURG FIRE. The Fall Extent of the Loss—The Insur- ance Deficient $100,000—The Principal Sufferers By the Disaster. NEWBURG, N. Y., June 10, 1973. ‘The loss by the fire last night will not fall below The principal loser is Wil- Mam O’Maillor, who owned most of the buildings His Joss, it is esti- mated, exceeds $125,000; he has insurance amount- ing to $100,000. The barge Newburg was valued at & quarter of a million. burned and the barge Newburg. $25,000, and her cargo was insured for $30,000 more. It is now stated that the fire was cuused by a man who was seen lighting his pipe among the nay, but he is not Known. Two firemen, Willlam C. Goodrich and Daniel McMillan, fell with a cornice from the roof of one of the burning buildings this morning, a dis! ce of forty feet, and sustained severe injuries, The latter had his knee c\p broken into small pieces, and may lose his leg; he was also injured about the head, ‘The jormer is doing well. The entire amount of insurance on the property burned is $150,000, leaving about $100,000 loss. In addition to this amount James W. Taylor lost about $20,000, he being insured for $11,000; Robert A, Forayth loses $9,000! insured for $5,000, D, 8. War- ing and the Newburg Plaster and Cement Company lose each $5,000; the former is insured for $1,000, the latter is'insured In full. Quassick Woollen Mill Company lose $7,500; partially insured. The re- maining losses are divided among a large number of owners, ranging from $3,000 down to $100, each partially insured, The fire was one of the heaviest that has visited the city in many years. Mayor Shute has tors warded thanks on behalf of Newburg to Mayor Eastman, of Pougukeeyse, for his prompt responso to the call for aid, COTTON MILL ON FIRE IN LOWELL LOWELL, Mass., June 10, 1873, About cight o'clock this morning a fire broke out in the attic picker rooms in the mill of the Lowell Corporation. The fire was first discovered in the bin in the rear of the picker, and the oily materials in the room contributed to the rapid spread of the flames, The mil! is 260 feet Jong, five stories high and is provided with water pipe perforated for sprinklersin each story and attic. The water was immediately let in and quickly checked the fire. The mull was completely deluged by water and the damage to the machinery in the cording and spinning department is quite large. The damage by fire is slight. Mr. Ross, who was employed in the picker room, Was badly burned, ALFRED, Me., June 10, 1873. At nine o’clock this morning County Attorney George C. Yeaton opened the case for the govern- ment in the Wagner trial. He made a lengthy ad- dress to the jury, giving the minutest details of the murders, and dweiling at length upon the jurisdiction of tne Court, explaining the boundaries of the county, and proving by old records that the case can legally be tried in this eounty (York). The witnesses on both sides were excluded from the Court, and will not be allowed in until called upon to testify. ‘The prisoner manifested no emotion, Eyen while the County Attorney ited the details of the ter- rible act his countenance remained unchanged and wore an incredulous smile, The court room was crowded to suffocation and ths excitement hourly increases. Large numbers of people are arriving by every train irom Portsmouth and vicinity. Nf AT NORWALK, CONN, ere aa Nai Yors, June 10, 1573. TO THE EDITOR OF THE HERALD: The article signed Captain N. Gorham in your issue of this day, does great injustice to Mr, Furn- ham, the Vice Principal, and reflects on Rev, Charles Selleck, Principal of the school for boys at Norwalk, in trusting the youth placed ia his charge with one whom Captain Gorham would have others think as incompetent. I reached Norwalk Satur- day evening, after the accident. I have heard many reports and versions of it, and yesterday listened to Rev, Messrs. Maillard and Taylor, of the Baptist Chureh, refer to it at the funerai of an old resident of Norwalk, but in no instance except this article signed “Captain Gorham” have I heard cither Rev, Mr. Selleck or Mr. Farnham blamed. On the con- ter the great charge repos jeck in looking him, It1s well known that Mr, Selleck, in agording his boys the pleasure of a row, always placed them in the care of his most experienced assistants, and with the Principal Farnham, and young Morris, the best swimmer of the school. 1 would suggest a suspen- sion of public opinion until the matter Is jully in- vestigated by the proper authorities, and then as judgment on Mr, Farnham (whom I have never seen), who held two boys ve water mntil Intm- self exhausted, and the conduct of the “many old steamboat commanders” who “Captain Gortam’’ says Were on the Americas, and who certainly kept ‘heir jackets dry oy Daas i fh Very truly, 8 LENOX TREADWELJ. __| MR. PRICES CAPTIVITY. Between McCarty and Mor- I—Bail Re. fused—The Death of Mordecai Arousing What the Action of the Government Has Been in the Case, A Protest Against Trial byt Court Martial. Secretary Fish on Spanish Animug Against the Herald. Interview of Mr. Price, Senior, with the Secretary of State. WasuincTon, June 10, 1873, This morning Mr. A. L. Price, of New York, father of L. A. Price, the Heraup core respondent imprisoned in Havana, called om Secretary Fish, at the State Department, ta ascertain what the prospect was for the re= lease of his son. Price was arresicd about: four weeks ago, and when Consv!‘ -nerak Torbert, ot Havana, informe] the State Department of the outrage Bancroft Davis was Acting Secretary, Mr. Fish then being; absent in New York. Mr. Davis instructedi Mr. Torbert to _ASK FOR THE IMMEDIATE RELEASE of Price, but from that day to the present it appears that his official actions bave not liberated Mr. Price. The State Departe ment has a good appreciation of Consul General Torbert’s ability, but is of opinion that the success he aims to achieve is retarded by his great zeal and patriotio energy, whereas a cringing policy would be more successful in dealing with the heartless Spaniards. This much, by way of introduc- tion, for when Mr. Price was received by the Secretary he requested Mr. Davis to be pres- ent, as the latter had more knowledge of the facts. Mr. Prico was informed that yesterday a telegram was received from General Torbert to the effect that Leopold A. Price, Hzratp correspondent, was # = TO BE TRIED BY COURT MARTIAL, ‘but upon what charges he had not been able to ascertain, Secretary Fish promptly instructed Consul~ General Torbert to remonstrate, in the name of his government, against any such proceeding, AS THE UNITED STATES WOULD NOT TOLERATE) the trial of one of its citizens by the court martial of a foreign Power. To this no answer had been received, Tho Consul General had. been promised a copy of the charges on which: ounger had, in this instance, his Vice | Mr. Price was to be tried, but no advices had been received of their tenor up to the closing of the Department to-day. The Secretary ase sured Mr. Price that EVERYTHING A GOVERNMENT COULD DO would be done, but diplomatic intercourse was not like matters referred to the arbitrament’ of the sword. Much time was necessarily lost: on correspondence, whether by cable or letter, and in the latter case weeks elapsed some- times before answers were read to letters sent from the State Department to Havana. This- had been so on effecting the release of Santa Rosa, also a citizen of New York, from whose father he had just received a letter thanking the Department for its persistent and firm efforts on behalf of his release, The Secretary was of opinion that the ontrage in this instance was DIRECTED AGAINST THE NEW YORK HERALD and not against Mr. Price, the same as in the case of Mr. O'Kelly, who, not being an Ameri- can citizen, the government could do no more than tender its friendly offices. In the absence of definite charges, he could only conjecture the cause of the arrest of Mr. Price, He though¢ the Cuban authorities were afraid that he had been in communication with Mr. O’Kelly, and would transmit such news as he had re- ceived from the latter to the Hrnarp, and that was what the Cuban authorities, he had no doubt, were determined to stop by every pres caution or embarrassment they could take or make. BEYOND IMPRISONMENT, HE HAD NO APPRE~ HENSION that any wrong would be done to the Heratp correspondent—that it might be some time before he would be released, but that was a penalty which all com- missioners sent out by the Hrratp appeared doomed to suffer. One cannot wonder, con- tended the Secretary, that the Cuban authori- ties should hate with all the malice of Spanish hatred a journal which has so fearlessly in- vaded its territory, officials by the presence of its correspondents, and sought to reveal to the world what the Spaniards are Most ANXIOUS TO CONCEAT.— the true condition of affairs in the insurrection- ary district. Of course the authorities claimed the right to make such restrictions as would subserve their own ends, while the fearlessness of the Heraxp, in exposing the conduct of the Spaniards made them only too glad to op. press its correspondents on every occasion. He did not mean to disparage the enterprise of the greatest of newspapers, for the New Yorg Heratp was a greater power than England, and almost as great as the United States, It was defied, as it were, ita A GOVERNMENT UNTO ITSELP sending to all parts of the world ambassa. dors and accredited agents. Mr. Price was highly delighted with the manner in which he was received by both Secretary Fish and Assistant Secretary Davis, He left for New York this evening, fully satisfied that whatever was possible would be done to effect the speedy release of his son,