The New York Herald Newspaper, April 5, 1876, Page 4

4 THE NEW DELUGE. Details of the Devastation Caused by the Floods in Austria and Hungary. THE DANUBE RISES TWENTY-FOUR FEET The New Bed of the River Endangered. Scenes at Vienna, Buda Pesth and Other Points. A Ploating Family, Pilots Looking for Chureh | Steeples and Rats in Flight. HUNDREDS OF HOUSES DESTROYED Dead Bodies posing. Decom- Viexxa, March 19, 1876. “It 19 mot am inundation, it 1s the Deluge over again!” The cry comes from Hungary; for the Danube th has swollen and expanded to a magui- tude equal to that of the broadest parts of the Missis- sipp. The inundations in Austria three weeks ago, when the winter suddenly broke up, are as child’s play in comparison with the fearful calamity in Hungary. IN BOHEMIA, It is true, the low lying quarters of Praguo are still flooded. The Moldavia, that turbulent tributary of the Danube, has changed hundreds of broad acres— and in some cases whole estates—into huge lakes, on the surface of which the roofs of houses and the tops of bree: visible, But there such floods happen fre- quently in the midst of summer, after rain storms, ond the population are, therefore, accustomed to be onfjthe alert; their houses for the most part are solidly built of stone, and suffer little from the surging waves which rash along the banks of the river. 1N MORAVIA the greatest sufferers are two railway companies, whose rails, sleepers and embankments have been partially swept away. Nevertheless, $1,000,000 will cover the whole of the damage done there, These two Provinces are the most fruitful in Austria and their tn- babitants are the most industrious, THE COMMENCEMENT OF THE DELUGE, On the 18th of February, just a month ago, after a steadily severe and altogether old fashioned winter, the temperature suddenly changed within the space of ® few hours from eleven degrees (Réuumar) below freezing point to eight degrees above it, A tremon- cous thaw followed. The telegraph worked day and night. The population wasastir. 1t wis not the ad- vent of a genial spring; the first rays of the bright sun toreboded disaster. The snow in the Bavarian Alps, in Upper Ausirla and in the Bohemian mountains, which were here and there covored to a depth (of eighteen feet, suddenly changed into torrents of water, which rolled down from enormous heights, gathering strength trom thousands of rivulets, brooks and rills, and rushed into the bed of the Danube and the Bohemian river, Mol- davia, which were still kept by the frost in icy bonds. THE BREAKING UP OF THR ICE, With a crash, beard for miles in the dead of night, the icc, in many places nine feet in thickness, broke up into huge Gelds and masses, and began to move slowly, Soon it began to heave and splinter, and, caught by the violent current of the Danube, it aped on swilter and swilter, increasing to a rate of ten miles an hour before it reached the broader bed of the river near Vienna DEVASTATION ON THE DANUBE. ‘Then tho broken fields of ice were squeezed upward, and many an iceberg was formed, some nearly fificen and twenty feet in height. In Austria the river rose tighteen feet above low water, in Hungary to twenty- four feet, and it is at this moment twenty-two feet above its normal beight, although the ice passed three weeks ago and bas already been engulfed in the Black bea. ¥ ANXIOUS PRECAUTION. From the first day of the sotting in of the thaw terybody, taught by experience and tradition “handed fown from sire to son,” was prepared for the worst, Everyone counted the hours with the precision of a mathematician. The risk likely to be icurred by every township and village situated within the reach of the river was calculated beforehand Thousands dislodged themselves voluntarily, other \housands were removed by order of the authorities Valuable property, such as was portable, and the few shattels of the poor were carried to places of saiety, THE TELEGRAPH AT WORK. Telegraphic messages came hourly from the Bavarian border, bringing information as to the height of the tising river and the exact degree of swiftness, thus en- sbling the Viennese (for instance) to know almost to the minute the time when the tremendous onward march of the flood should reach the precincts of the tity and its outlying suburbs. This lasted for days and Bights, and then the icebergs swept past in awful wajesty, roliing and tumbling and rising again, bury- Ing trees and bridges and parts of houses, which they bad destroyed on their way. Tho Vi sccupied for five years in trying to regulat their glorious river, In fact, they have dug sew bed for it, but this powerful swell of water—s00 ees broad—broke down many of the bulwarks and FILLED THE OLD DRY BED AGalN. Yet the works did not entirely fail. They served to tave the railway bridges, and the traffic was only in- terrupted for a week. The iron floating ice ship, which io winter closes the channel in order to prevent the ice passing through the city, {uiled to fulfil the ex- pectations formed regarding it. It was lifted up high into the air and the ice passed underneath. The iatier was, however, crushed, and thus the danger was les- sened. If the water in the channel bad only risen three inches more the whole of the Leopoldstadt would bave been flooded fathom deep. For a week boats were placed ready at every doorstep. Through tll streets and lanes planks were laid on high posts, \bus forming a boarded walk along the houses above the possibie reach of the flood. Aiter days and nights bf anguish the water fell. Of the many INCIDENTS OF HAIRNREADTH RICAPES. The following was the most astounding:—In the (ead of night, when some tron boats, directed by pio- \eers of the army, were picking up squads of helpless | seople who had been suddenly cut off trom the world | yy their houses and homes having been turned into ‘Wands, an entire wooden house swept by on a field of be, The windows were lit up, and the cries of the dwell @s for heip were beartrending. The brave teliows of be boats forced their way through tho crushing ice od binding foam to this icefleld, which burried along $4 tremendous speed. They sucoveded in saving the | Vhabstamts and carried them, fainting with cold, to heir boats. A minute afterward the ice broke into a | sillien of splinters and the house, with iw windows ll lighted, siowiy disappeared in the huge torrent. ‘THE OLD EXPOSITION GROUXDS. Although the greatest danger ts now over, large por- eas of the Prater are still foeded, as are also ail the enude islands near this city, together with hundreds ( gardens. The many foati mills On the river are setroyed. When the flood was at its bighest it reached ve steps of the Exhibition buildings of 1875, which are ow being pulled down. The gigautic rotunda alone, 2th its square of buildings, wili be preserved. The lis and foundations bad been happily strengthened wently, i: being feared that the water would under. ‘tne them and cause the rf of the Rotunda The | thole of the broad expanse of acres of the wheat grow. | \g Marth feild, in former centuries the cockpit of con- mdibg nations, where every village bears a name | onored in the history of wars, is still A BROAD EKA, FOUR PRET DEEP, | van extent of seventy square miles, and reaching to | se borders of Hungary. Thesamo state of things ex- | img, 18 peeping forth, or where tho ruins of a house, te along the river soutnward, to the Sclavonian | well known to him, lie hidden under the watery sur- sore, facing Beigrad, in a votai length of 200 miles, TRE INCHDATION IN HCKOARY. | Mineo 1890, when hai! the city of Pesth was destroyed | twenty millions will hardly suffice to repair {t. Nota by floating ice during an inundation, such a catastrophe as the present bas been unheard of. The flood has now Jnsted for three weeks. Only last week the Danube and seven tributaries, breaking through dam and ayke, were rolling their waters into one huge stream, which is covering no less than fifty-five villages with nineteen feet of water, Many a small towrsbip is flooded Houses, long ago deserted, are breaking up here and there, and many are being propped. Until yesterday, mm THE NEIGHBORHOOD OF BUDAPESTH, military were picketed on the dykes, which have es- caped destruction hitherto. 1 say hitherto for there is no knowing what will happen if the heavy fall of snow continues—if a new thaw should bring new floods and another of the hurricanes, so frequent in spring, should speed on the work of destruction. The splendid suspension bridge of Pesth is saved, as is another bridge, newly constructed, 600 feet in length. Curiously enough this bridge leads to nowhere; it stands alone over the broad waters, both shores being entirely inundated. Tho wharfs are still four feet under water. The steamers in the flooded winter port are incessantly keeping up steam and work- ing their engines night and day to prevent being torn from their anchors by the rush of the siream, which at this point is making twenty miles an hour, The river is eighty feet deep in places, and to this depth, just below the city, bad the ice been blocking it, viz, to the very bottom. This was THR CAUSE OF THK DISASTROUS ¥LOOD AT PESTH. Below the city the river opened a new bed for itself, which is at present fifteen feet deep. Pumps are con- Stantly at work to prevent the sewers from bursting. Here and there water had bubbled up from underneath the pavement, Pesth peing built upon porous sand and being often troubled with ground water. To this hour no persen is allowed to pass the broad and massive river quays, for it is feared that they will no longer be able to stand the pressure of the waterand may sud- denly crumble away. Incalculable is the amount of DESTRUCTION IN THR CITY OF BUDA, now united with Pesth under one administration, both cities having the name Budapesth in common. There nearly one-third of the houses are deserted; only in the top rooms at night doa fow ghastly lights indicate the presence of living beings) In many parts of the lower Streets tho roofs only are above water, and are covered with an immense number of rats, Below the towering cliff, on which the citadel is situated, ig a long, low lying district called the ‘“‘Raizenstad\’’ The ‘*Raizen’’ are of Servian descent, and have always been stanch antagonists of the ruling race of the Magyars, who therefore met with little mercy at their hands in the year of the rebellion of 1849, when Austrian reaction triumphed and was warmly supported by the Sclavo- nian element of the people 1S THE RAIZENSTADT. The Raizenstadt is flooded throughout to the first floor windows or to the tops of the arched doorways, whos bardly allowing a flat canoe to pass through into the yards, Here and there = daring shopkeeper truly risks his life for the prot of business—for the de- struction of houses is daily increasing—has removed his stock in trade of victuals to the first story, and is solling from the window to customers coming in boats from the nearest house islands. A curious spectacle is presented by a number of cabs, whose drivers found a place of safety just a little above the surging waters. UNFORTUNATE JEHU. Cut off from all connection for four days, poor ‘Jehu’ bad to use his otherwiso perfectly useless ve- hicle as a house, and has been living upon such gifts of victuals as could*be thrown te him from boats) Ho would not leave his horse and stayed on till a ferry was found to carry the borses to the land. At another inundated cab stand the coachmen are sitting idly from morning to night and nodding sleepily on their boxes waiting for the great waters to abate. Now and then a passenger wades through the shallew water, anya dash is tried to carry him to his destination, Other districts of the elty are suffering greatly—tho ‘Was- serstadt,”” algo Old Buda, a low lying district, and New Pesth, a suburb, only built up ten yoars ago, MORE THAN A HUNDRED HOUSES COLLAPSED previous to last week, and in some of thelanes good sized river ships are anchoring, hoping thus to escape their resistible current of tne flood. It is expected that 200 houses more will fall when the water subsides. Up to last week 6,030 people were under sholter in churehes, Communication by boats is perilous. In the more exposed parts of the river ships and boats are towed along the shore by wire ropes worked by steam engines’ Navigation on the river itself will bo an impossibility for wecks to come, Buda is rich in mineral wells of a high tempora- ture The “Racozy” has a world-wide fame. Millions of bottles are exported every year. Four grand and splendid bathing establishments, re- ceiving their hot water supply from the volcanic ground | upon which the old city is built, are nearly destroyed, end those sanitary wells of @ thousand years are filled up by mad and rubbish, and perbaps are spoiled for ever. The litue PARADISE OF THE MARGARET ISLAND, the most beautitul place of public resort in summer time, with {ts fine park, its matchless Pompeian. bath- ing establishments, newly built mansions and villas, is a picturo of desolation, Many an old tree fella victim to the sheets of ice, which cut through the stoucest tranks like a knife through blotting paper. ‘The beautiful veranaa of granite and the costly flowor gartien [ronting it are destroyed. There, in the Vienna exhibition year, the city of Buda-Pesth gave a welcomo and a banquet to the representatives of the foreign press—American, English, French and German. All those lovely retreats and leafy roofs, whence issued the heart stirring music of a national gypsy orchestra, which was wafted to your ears by the goutle breeze of @ summer evening—all this is now a howling wildor- ness. The waves are roaring through the branches of costly exotic trees, under which then reposed the foreign guests FIPTEEN THOUSAND PROPLE, who havo lost shelter and home, aro being fed at pub- he expense, 7,000 at Buda-Pesth alone. Many of them were own of bouses, which have been levelled to the ground or are now tottering to their fall Hun- dreds who have been living im easy circumstances aro now reduced to extreme helplessness. The same tale is being repeated along the immense streten of water | throughout Hungary. Only Jast week, when the water ‘at Buda-Pesth had become calmer, the town of Mohars, down the river, was half destroyed, The name is marked in the history of Hungary as that of misfor tune. There, in the year 1562, the Magyars suffered a crashing defeat at the hands of the Turks, who con- sequently ruled over Hungary for nearly 150 years after. The walls, which stood the storms of 600 years, have beep swept away by this flood in one short hour. SIX HUNDRED SQUARE SULKS INUNDATED, ‘The whole extent of land under water at the present time is about 600 square miles, 1ocluding 1,600,000 acres of tilled or arable | which means ruined bar vest hopes, calculated at 9,000,000 florins, As to THN Loss and damage accruing to the whole couatry, sixteen to sunbeam has been visible for three weeks. The sky is lowering, and long lasting rains are pouring down at | short intervais, as if there were not enough of this | ¢p; liquid element already. 11 some townships, situate near the banks, the order to illuminate the houses at night is still obeyed, in order that all may be ready for | Any Dew emergency, and it 1s feared that the dykes are | loosened by a three weeks’ incessant motfoa of the waves rippling to the top. STRAMBOATS OS LaxD Above Buda-Pesth, small propellers are now passing over the inundated country, where the water is quiet | and smooth, in order to establish a temporary means of communication betweea the dwellers of the various | Viltages situate on the dry oases of hiliy ground amidst this wilderness of water, which almost seoms to be as- suming a permanency, The fall is less than halfan ieh on adry day, and this is always made up bya new rise, after a few hours of rain or a change of | wind Soldiers are picketed on some of the dykes in ordef to prevent an attack on them by the people | who fancy that their misery is caused by the existence «| of these dykes, and that, ifthe water there founda | vent into other men’s ficlds, the river would have iit | tle to spare for themselves lower down its way. A conspiracy among such poor, tguorant and despaitipg | peopte did indeed exist for this purpose. On board of the small propellers the river pilot is useless, PRASANT PILOTA, A peasant, baving an intimate knowledge of every Knoll aod tree in a district, is standing near the steers. man poimting out where the trunk of a tree, lef stand- face, and are likely to cause s shipwreck to the u wary navigator. A few days ago twelve men, women and children were rescued whe had been clustering Yegether on = cmal!l knoll of ground close tothe Steeple of a village church, left standing alone, They had not room forall to lie down, The lot was drawn among thom every two hours for this privilege. Whilst half of them took ress, the Other half had to stand. So they passed a whole week On seanty rations and exposed to the cruel winds of a cold March. Three of them died on the spot. Decom- Position began, and the survivors, horror stricken and sick of the sight and smell, found no other means of ridding themselves of the dead bodies but by slinging them up to the roof of the steeple, which was effected with great difficulty, They were taken down two days ago for » decent burial. INFINITE SADNESS is spread over the inundated lands Large tracts will not be dt for ploughing before autumn. Tne ill-famed Hungarian swamp fever, which tortures the patient in regular intervals, sometimes for nine months, until ho succambs, will no tdoubt make terrible ravages among those thousands who are now in utter want aud misery. This will enormously swell the list of the dead, which is hitherto small, thanks to the care and Promptitude of the authorities, whose activity has been beyond praise. There is a large work left to be done by charity. In nearly every country of Europe subscription lists are being opened with a view to help Hungary in ber direst hour of heart breaking desola- tion. THE NAVAL CONTROVERSY. “‘& FRIEND OF PEACE” STATES THE CASE OF THE TINE WITH CLEARNESS. To THe Epiton or Tux Henany:— ‘An arficle, signed “Constitution,” published in your paper a few days since, and necessarily placed in the hands of a great number of readers in all parts, has been read and discussed by a greatjmany naval officers» among others, Its tone 1s 80 personal and its generali- ties so extended as to cause a doubt among them as to its being written by @ lime officer of the navy, 1m whose behalf its claims to speak, but rather by a contributor hostile to them. The line officers only claim to be allowed to perform their duties connected with the service in which they have been educated and com- miasioned, according to well established rules and custom, without unnecessary interference or collision with surgeons, paymasters, engi- neers or other officers appointed for specific duties and necessarily subordinate when on duty to the commander of the vessel or the line officers carry- ing out his orders, If aggrieved in the manner in which this is done they have the same opportunity for investigation and redress which is open to the line officers. In this routine of duty it ts the desire and in- terest of every line oflicer whe claims to be a gentie- man to concede to his associates of tho staf every Tight, courtesy and consistent privilege, and they en- tertain no such sentiment toward them, 80 far as tho writer’s extended observation evables him to assert, as that article ny a the contrary, the close asso- ciation of the line and staff in service is well kngwa to both to be generally characterized by courtesy and per- sonal consideration; and it is only when the former discover an ill advised and injudicious acuion by some of the latter, in claiming rank and precedeuce not recognized in any service and utterly subversive to discipline, by means of personal importunity and legi: lation, that @ protest is sometimes necossary against making staff oflicers what they are not, never have been and properly never can be. ‘This any educated officer in any service will readily testity aw subversive to the very existence of eificiency, which requires a responsible head to every vessel, fleet or post, and capable assistants, each one limited to and held responsible for the special duties intrusted to him. We have given to surgeon, pay- master or engineer the assimilated rank of commodore, captain or lieutenant and all the pay and emoluments attending the assimilation, but when he assumes to be a commodore, captain or lieutengat when on duty, an intelligent person will see that it not only changes the signification of words, but creates an utter demoralization, where the real eommodoro or captain (boing directly responsible to the govern- mont for bis ship and all its ollicers and materiul) re- quires the observance of his orders through his execu- tive or a lino officer (who may be oniy a tieutenant or master) by any of these commodores, captains or licu- vepants (by assimilated staff rank), some of whom, per- haps, consider themselves the real thing by length of service in his corps. Many staff officers would probably disavow such claim as palpably inconsistent and sub- versive of discipline, Such rank is Inconsistent on its face when asserted in a title. These tities have been conceded by tradition in all countries to men whoso special duty it is to navigate or fight and smoll of wder, Not to display it om occasion would be ag fatal to the real holder’s reputa- tion as a defaication in his accounts to a pay- master, malpractice or noglect of his lente to a surgeon, or negloct.and aerangement in his on- gine by un engineer. Each of these officers is commis- sioned and paid to perform specitic duties, and as it is necessary to have a head in cach, departments control their assistants, but 18 it not equally necessary to have a head to all subordinates when on duty in a command- tng officer, who promulgates his orders through the line officers, who, in turn, under him in case of cas- ualty, may command the vessel, which it would be un- sate to intrust to staff oflicers only qualified on papor by assimilated rank. slate as wo may, the staf! is acivil corps, although doubtless tn many instances they have given gallant voluuteers where fighting was to be done. This question of relative rank has become @ cause of an increasing dissension in the servico, asthe Beecher trial, and weakens it in the eyes of those who pay tae dill. A question, it is said, bas oven been raised by a staff on one occasion On coming over the side of the vessel as to the propriety of saluting the officer in chargo of the deck, his junior (on the bay roll), not recognizing in his puncttlions sense of humill- ation that through him he merely recognized the flag and a floating section of the nationality of the country to which his allegiance was due and from which his pay was received. In thecolumns of the press we some- times recognize the mame of one of these Utular com- modoros or captains. It revives an anecdote of a young attaché of our country who was presented by our Min- ister to the great Nupoleon as “Colonel —,” and being tm full uniiorm, was suppressed by the Ewperor’s inquiry, “In what battles M. le Colonel had dis- tinguished himself?” A modest “Mr” in a country where titles abound is certainly more honorable than that of acivil general worn by some Cromwell guiitiess of bis country’s biood.”’ What the people, who pay liberally for their facilities of de- fending their honor and protecting their commerce, want ts eflicioncy in every department, subordination and discipline, m accomplishing which in the navy much experience and wisdom have been used, with a result in all our national struggles hitherto creditable to this service. They take little interest in matters of etiquette, and consider the whole discussion as a wash- ing of soiled hen before the public, the beneft of which, if successtul, may inure to a much smaller number of officers than now enjoy it, if they fuil to remember the old adage, “United we stand, divided we fall.” A FRIEND OF PEACE, THE SIX YEARS CLAUSE THE ONLY GRIEVANCE, Nav Yarp Porrsmovra, N. H., March 80, 1876, To tux Epitor oy tax Hweacp:— We, the undersigned line officers on this station, havo read with pain the paragraph im your valuable paper of the 20th inst, headed ‘A Line Officer's Views of the Proper Position of the Staff.” We can searcely believe that there is a line officer in the service so Jost to all feelings ot propriety, good sense and com- mon decency as to have written or cxpressed such views, and make use of such abusive epithets against our brother officers of the staff, However much we may differ with them in their ambitious efforis to ob- tain high and positive rank—which we think’ will seriously injure the discrpline and efficiency of the service—we would ui jow hold by law, ex- cepting the six year clause, which wo consider unjust. ‘© set of people on the face of the earth regretted more than ourselves the reopening of this question of sta rank, a8 wi cy highest grade the navy—that of admiral vice admiral—having been abolished, after the decease of the present {pcumbents), was inal, Any ne who would express such views and clothe them im ich language a8 exp in gad paragraph is no id ot the line and cannot be overburdened with common sense. By giving this promfnent notice im your paper you will greatly obi! &e., yours, truly, J. YOUNG, Captain ‘United'States Navy. HENRY ERBEN, Commander United States Navy, J. D. AMES, Commander United States Navy. FRAUDS ON ERIE, Ramors have recentiy been freely cifculated about ome alleged‘irauds in the purchasing department of the Erte Railroad Company. ‘appears that the officers of the company are now investigating the matier, and, Judging frowm a circular that was issued a few days ago, have discovered some truth in the report. The cireu- lar annoanced that J. H Hardenberg had been ap- pointed purchasing agent, vice Coione! Henry Bow- It 38 also rumored that the stores Paterson, were founded on {uci tes in charge of the okt material of the company have been removed. On Sunday last Colonel Henry Bow- man was served with am ne exeat at his residence in Passaic, N. J., that compels him, under a penalty of $6,000, to remain in the State, The Colonel bas Tecently purchased a handsome house in Passaic. The tavestigations will soon be brought toa close, ss the officials are on the right track to sift the entire mat ter. THE GREAT WESTERN. The wreckers, under Captain Merritt, of the Coast Wrecking Company, are still briskiy engaged in strip- Ping the wreck of tho steamship Great Western, ashore | ; om Fire Island beach, She is completely broken in two, and the water at high tide flows into her even wi upper deck, The cargo, with the ¢: of thi will be @ total loa, At low tide Cd twelve of water in er, bout the scrap iron parchased by 4 Doringer, of | aud that several par- | NEW YORK HERALD, WEDNESDAY, APRIL 5, 1876,—TRIPLE SHEET. DOLAN DOOMED. | The Court of Appeals Unanimously Affirm the Decision of the Lower Courts. ;WHAT CONSTITUTES MURDER. Legal Technicalities and Absurd Interpretations of the Law Bebuked. The Question of the Commissionership of Jurors Virtually Settled, Anpany, April 4, 1876 The decision of the Court of Appeuls in the case of Dolan, who murdered Mr. Noe, which was handed down to-day, and which by a upauimous vote of the judges affirms the judgment of the lower courts, is of more than usual importance. It virtually puts am end to the doubts entertained as to the legality of the acts of Thomas Dunlap as Commissioner of Jurors in Now York, declaring that the drawing of jurors by him is not illegal, inasmuch as he was de facto Commissioner when juries were drawn since he was appointed, and in view of the fact that be was recognized as such de facto Commissioner by the proper officials who were engaged with him in the work. The chief point of interest in the decision for the legal profession at large in the State, however, is the construction the Court puts upon that apparently absurd feature of the law of 1873, which provides that the killing of @ human being by a person engaged in the verpetration of a felony when the Killing is done, “without any design to effect deatn,”’ shall be murder in the first degree. The interpretation put upon this by some has been that the law in fact made it a less heinous offence for a person to kill another with de- sign than if he killed ‘without any design to effect death.” The present Legislature, under the belief that murderers might under this ciause possibly escape the full penalty due to murder in the first degree have already passed a bill which is now in the hands of the Governor awaiting his signature to become a law, which strikes out of the act of ‘73 the words ‘without any,design to effect death,” thus patting it beyond the reach of the absurd interpretation wrongfully put upon it by some of the lower courts, and declaring that a man who, while perpetrating a felony, kills another commits murder in the first degree, no matter whether he designs or not to effect the death of his victim. The following is a certified copy of the opinion of the Court as handed down and which consigns Dolan to the gallows if the Governor should not interfere:— OFINIOX OF THE COURT. Earl, J.—By‘the demurrer to t lea in abatement the following facts must be deemod admitted:—That the annual panel of Grand Jurors tor the year 187! for the county of New York, was not wholly selec! from the petit jury Itsts made out by Donglas Taylor, Commissioner of Jurors, and that that ei, as well as the special panel of grand jurors drawn to serve ‘at the term of court at which the defendant dicted, contained the names of persons who we: upon the potit jury lists made out by Taylor; Taylor, who was Commissioner of rere. did not attend upon or supervise the drawing of the grand Jurors who were summoned by the Sheriff, and irom whom the grand jurors who found the indictment were taken, and that he was prevented irom attending such drawing, although desirous of so doimg, by the duress of the County Clerk. It is claimed on be- halt of the defendant that cle that he was not properly indicted, fore that he was not properly this presents the first quostion for our consideratio! It will be useful to bring under review the various laws applicable to the elty of New York reli lection and drawing ane so that we mi precise bearing of the dofects alloged in the plea de- murred. THE LAWS AS TO DRAWING JURORS, Under the Revised Statutes (2 R. S. 412, seo. 21) it was provided that in the city of New York each ward should be deemed a town for the purpose of returning petit jurors, and that the Common Council of the city should provide by ordivance the manner tn which and how often such selection should be made, and the officers and persons by whom it should be conducted. A list of the jurors thus selected ‘was required to be deposited with the County Clerk, and ho was required to draw thirty-six jarors to attend cou in_the presence of the County Judge and Sheriff, (Secs, 24, 27,29.) Ajcertified let of the per- suns thus drawn was to be delivered to the Sheriff, and he was to summons the persons thus drawn. In 1830, by chapter 24, sec. 4 of tho laws of that year, the umber of jurors to be drawn for any court was not exceeding eighty-four, instead of thirty-six, and thus the law as to so! and drawing petit jurors re- mained until 1847. By the Rovised Statutes (2 R. S. 720, sec. 2) it was provided that the Mayor Recorder and Aldermen of the t a of New York should meetin July in each year as of Supervisors of that city and county, and should prepare a list of the names of 600 persons to serve as grand jurors at the different courts to be held in the city during the then ensuing year, and anti] new lists should be returped, The hst was required to be returned to the County Clerk. He was required to put the names into a box and draw therefrom, trom time to time, in the presence of the Sheriff, County Judge or other officers named, twenty-four sons to serve as grand jurors (sec, 10), and 1 was required to deliver a certified list of the names thus drawn to the Sheriff, and he was required to ‘summon them, By chapter 332 of the laws of 1441 the number required to be drawn was changed to thirty- ‘six, and thus the Jaw remained until changed as men- tioned below. In 1847 (chaptér 495) 1t was provided that the list of eat by should be made by a person to be appointed y the Supervisors of the city, the judges of the Su- Ve Court and the judges of the Court of Common ‘jeas, and Known as the Commissioner of Jurors. Ho was required to make a list of all persons liable to perform Jy, duty, and retarg the same to.the County Clerk. The names thus returned were required by the County Clerk to v+ placed in a box, and he was to draw the jurora, as be- fore provided, to serve at the courts, and the persons thus drawn were to be summoned by the Sheriff, * In 1853 (chapter 498) it was provided that the per- sons to serve as grand jurors in the erty of New York should be selected from the whose names are contained in the list of petit jurors for the time being for said city by to consist of the Meyor, pre- siding Juage of th Court, Chief Justice of the Superior the first Judge | of the Court of rt, Common Pleas, the Recorder and the City Judge. They were required to moet an- uually at the office of the Commissioner of Jurors on the first Monday of September and organize, by the se- lection of one of their number as chair four of | their uamber constituting a quorum. The Commis- Stoner of Jurors was required to attend their meeting, act as clerk and produce to them all the lists of jurors in his possession. They were required to select from ‘these lists a list of not ‘than 600 nor more than 1,000 persons to serve as grand jurors in the city until the next ligt shall be prepared abd the names deposited. The list thus selected was required to bo cerufed by the officers making it, and filed in the office of the Couuty Clerk. The names upon list thus made and fled were to be pla in a box by the County Clerk, and he was to draw therefrom the uames of the persons who were to serve at any court as grand Jurors in the manner thon provided by Jaw, except | that one or more judges of a court of record was re- quired to be present at tho drawing and certify the same, The number to be drawn was not c |, and they were to be certified to and summoned by the Sheriff. In 1870 (chapter 539) the law was again somewhat | changed as to the powers and duties of the Commis. | Sioner of Jurors and the selection and drawing of | jurors, The Commissioner of Jurors was required to | | | commence the preparation of lists of petit jurora in the month of May in each year, and (oalet thoretn the ames of all persons possessing the qualifications mea- toned in the The ag to filing she list in the County Clerk's office aud drawing and summoning Petit jurors was left unaltered; and the law asto the selection, certifying and flag of % annual list of not | lesa a Bor more 1) 000 jurors, was also left unaltered. Section ON of shat chapter however provides that ‘grand jurors shall be drawn and summoned in the same manner ag petit | Jurors,”’ and that ‘‘the ballots shail be propared by the Commissioner of Jurors and after being caretully com- red with the lists regularly selected, shall be placed in the grand jury box. Uniess the Court of Terminer, or the Court of General Sessions shal wise direct, the Commissioner shall draw Ait; Jurors tor each of said courte on the same petit jurors to be empanelled at the same time shail be drawn.” This was the first law which authorized the Commissioner of Jurors w draw any jury. Beiore that bow petit and grand jurors were re- quired to de drawn by the County Clerk in tho pres- ence of the officers named. Such 1s still the law, ex- | cept as to tho grand jurors, and they are now re- gor to be drawn by the Commissioner at tho unty Clerk's office, in the presence of the same of- | ficers a8 before required, and to be certified and sum- | moped as before. Although ify are required two bo ; drawn and summoned, as a grand Jury cannot be com- posed of nore than twenty-three nor less than six- teen persons, the Court must select from those = appearing the requisite aud excuse or discharge the rest. (2 R S, 724) The plea contains no allegation of any corruption, dishonesty or unfairness on the part of any ot the officers in selecting and drawing tho grand jurors, or of any design to injure the defendant or auy other Person, and it contains no all ion that any of the | | persons who were apon the Jury which indicted the defondant aid not possess the qualifications of jurors, or that any person was upon the jury who would not have been there if all the forms of law which are claimed to bave been had been sirictly complied with, It is not appar. Auinber ent how tain to every intent, on Cr. Pro, sec, ; Fin, 155; State va. Newer, 7’ Blackf., 307; State Hardin vs, State, 22 Indiana, 347.) THE JURY LISTS VaLtD. There is abandant answer to that portion of the plea alleging that tbe annual list of jurors was not | wholly selected from the petit jury lisis made out by Taylor as Commissioner of Jurors. It is not denied that the jurors were selected at the proper time and place, We must assuine, as there are no allegations to the contrary, that the Roerd, composed of the Mayor and other officers, met on the first Monday of Septomper, 1875, at tho office of the Commissioner of Jurors and organised as required by law; that Taylor was there and produced to them ali the petit jury lista then in his office, and that they main); from such lists nos less than than sorve us 3 hose Boe upon the petit jury list nur how many were thus selected, It will answer the allegation of the plea to suppose that the number was not more than two or three. No aathority can be found holding that in such & case the whole list ts irregular and null, 0 that none of the persons on it could be drawn for grand jurors because a few names without fraud or design were, as ‘we may assume, by accident or oversight, also put upon he. From the list of names thus selected the law requires filty to be drawn and sum- moned to attend a cour, This precise number is fixed by the statate for no purpose of benefit or ad- vantage to the persons who may be presented for in- dictment. Tho sole object of r- quiring this number is to secure the at ‘at court of @ sufficient num- ber to constitute a Graad Jary. If more or less should be drawn no harm would be done any accused person, provided Mcient number of qualified jurors were drawn and empanelied. No person who may be com- plained against before the Grand Jury cau have any part in the selection from the fifty of those who are to constitute the Grand Jury. That duty of selection devolves upoo the Court it may select a sufficient pamber, and discharge the rest, and it may determine in its own way what mode shall be usedto make the selection from the fifty and tor what reasons any of the @fty may be discharged or ex- cused. Hence, the fact that some one of the may not havo been upon the petit jury list made by Taylor, go long as there is no complaint that all the persons actually sworn and em} Hed were upon that list, shows no error of which the defendant could take ad- vantage by plea in abatement or otherwise. (Ferris vs. ‘The People, 31 How. Pr. 140; Friery' Keyes, 424;' Vanhook va State, 12 Texas, 252.) A DRPRCTIVE PLEA. Coarts do not Jook with indulgence upon objections to irregularities in the mode of selecting or drawing grand jurors committed without fraud or design, which bave pot resulted im placing upon any panel dis- qualified jurors. But the portion o! the plea we are now considering is defective tor another reason. It does Rot give the wames of the persons who are alleged to have been selected and drawn, and who wore not upon the petit jury lists. This is always required in a plea of abatement when defects of such a character are alloged, Suppose the piea had been that a number of the jurors actually ompaneilod were not quulified or that they not been sworn, a plea setting up such matters for the purpose of quashing the indictment would have to specify the names, In O’Connell vs. ipa Soupra, a plea in abatement that certain of the witnesses upon whose evidence the in- dictment was found were not sworn, was held bad upon geueral demurrer, among other reasons because ‘the names of the witnesses were not given in the plea. In this caso the names should have been given,|so that if the District Attorney had chosen to join an issue of fact upon the plea he would have known precisely what allegations he would have to meet. DUNLOP COMMISSIONER DE FACTO. But a moro serious allegation of error is the one that Taylor, who was Commusajoner of Jurors, was prevented by duress from attending upon or supervising the drawing of the Grand Jury for the Octoberterm, But here again the ailogations of tho plea are very meagre and deficient. 1t is ad- mitted that the jury was drawn by some one. The County Clerk muy be assumed to have been present, as he was required to draw the petit jury at the samo time, and probably also to certify the drawing of tho Grand Jury, We must assume that the drawing was at his office; that the other officers required to be present were there; that the ballots wore prepared, com- pared and deposited in the Grand Jury box by some one acting as Commissioner of Jurors and claiming the mght to act as such; that his action was recognized by the officers who witnessed and were required to witness the drawing; that tho certified to the Sherif by the proper peared and wei summoned by him; that they ap- aworn, empanelled and recognized by the Court as the Grand Jury, without any objection from any one. All these facts must be assumed, as none of them are denied, some of them admitted, and all required by the statute. The ples does not disclose how the jury was drawn, nor by whom. There is no sliegation im it that the drawing was not made by ®@ person acting and. claiming the right to act as.Commissioner, and there is no allegation that Tay- Jor acted as such at any time, The allegation as to him is simply that he was Commissioner during that year, which allegation is fully satisfied by Reeth it to mean that be was do jure loner. nsist- ently with that allegation, theretore, applying the rule of strict construction applicable to such a plea, wo may bold upon all the facts above alluded to that some other person claimed the offico and was acting at least as a de tacto Commissioner, and that he was recognized as such by all the ofticers who bad relations with him or bis work, The maxim omnia presumantur rite & esse acta donec 1 contrartam may be invoked against the loose and uncertain all: e i *F ae oe # ee tions of irregularity and error contained in tho plea to fortify conclusion we have reached that the jury, if not drawn by a de jure Commissioner, was at pretty by drawn by a de facto Commissioner. ado iacto Commissioner would be as regul: drawn bya de jure Commissioner. (Leech's case, 9 Howell’s State Trials, 358; Wilcox va Smith, 5 Wend., 231; Pe va Cook, 8 New York, 67.) The case of O'Connell vs Regina, supra, shows how strictly such pleas are construed. There the plea was that the indictment was found upon the evidence of four witnesses, und that the sald witnesses were not sworn, and the plea was held bad, among other reasons, because there was no averment in the piea that the bill was not found upon the evidence of other witnesses who were sworn, besides those who were alleged to have been examined without being | sworn, and because also tho four witnesses might | have been authorized by law to give their evidence upon affirmation instead of upon oath. So there is no averment in thia that tho jury was not drawn by some one was acting and claiming the right to act as Commissioner of Jurors. gcase ®pleain abatement that the grand jurors were returned by two persons, naming them, ‘who were not sheriffs, was held bad, because the Court might infer that the persons named acted as de facto sheriffs and wore recognizea as such. We therefore conclude that the demurrer to the plea was properly sustained. THE CHARGE WAS MURDER. It is claimed thas the defendant could not be con- vieted of murder to the Grst degree, under the first count, om the ground that that count was void, for duplicity io setting up two dis- tinct offences, a lary and a homicide in some That count first describes a burglary in the third degree in form, so a to show thas a complete offence was committed, and then charged that the defendant, while engaged in the commission of the burglary, commitied the murder charged. There was but one offence charged—that of kiiling while engaged in the commission of a felony (Laws of 1873, chapter 644), An indiotment under that ion ot the statute must describe the felony and state sub. stantially facts showing that the accused was ¢ in tho ‘commission thereof it certainly can harm to the accused, and him as to the he was called upon to Co hab that , ‘cs offence was more fully or minutely than necessary. that only ove offence was designed to be o! count, and no one cou! ‘ead it without knowing that was murder while engaged in the commia- ¢ felony described. A COMPLETH BURGLARY. It ts farther claimed that the first count ts delective in charging that the killing was comumitted after the complote offence of burglary had been committed, and not while the accused was engaged in the comm-ssion of the burglary. The count does not bear this con-. struction. It describes a complete burglary, and then alieges that the accused committed the mar- der while engaged in the burglary, not after he had committed it. If a ourglar break into a dwelling house burglariously with the inient to steal the offeuce is doubtiess completed before he leaves the building, but he may be to ve ongaged inthe commission of the crime until he leaves the building with bis plunder, and if, while thero engaged in securing bia plunder or | in haha acts immediately ‘an ee, with his ime, any one resistin: tim, he is guilty of murder under the statute x! : dere Murder in the Orst degree is aescribed in the act of 1873 as follows:—“First, when perpetrated from a deliberate and premoditated design to effect the death of the person killed, or of any human being; second, when perpetrated by an act imminently daugerous to others, and evincing a depraved mind, regardiess of human life, although without any premeditatea design | to effect the death of any particular individual; third, | when perpetrated without any design to effect death b; & person ehgaged in the commission of any felony.” It is tarthor claimed thas this count is defeotive becaui it was not alleged lo bo could not mislead the sion of legation, on the contrary, being that AM “wilful aud felonious. " Tt Ww tadonbied law a indictment upon 4 statute must state all the facis and circumstances which constitute the statute offence, so a3 to bring the accused perfectly within the provisions of the statute; but it need not contain the words of foyeety g 2 - bog if z contains substance and effect of them, va, Alien, 6 Denio., 76; 1 Bishop on Cr. Pro., he Gs) DELIBERATE MURDER, The Revised Statutes (2 R. 5. 546, sec. 5), contain the same definition of murder as that of murder im the firat degree under the statute of 1878, except in the in the Revised Statutes, the word ‘‘deliberate’’ before ‘premeditated’? was omitted. In 1860 (chapter 410), murder in the drst described as follows: "sail murder which 4 potrated by means of poison or by lying in walt oF Pf other ot will eliverate’ andl premeditated killing, or which shall be committed in the perpetra- ae Won of th ompt to rate Febbery or burglary, "uh ete ang! aoemipy 6s escape deemed in the commission of a felony in the same dogree, although there was no wo effect death, The sole of the words ‘with. out any design @flect death? was to dis- nse with proot of any design. It cannot aupposed that the ure meant to require proof in such a case that the killing was absolutely withoul any design to effect death, and in caso of such prool tg caso of t deal; chan; sought to be effected ‘the statute of 1893 eat remove the limitation as to the fed felonies and to ™ killing murder in the drag if doue while engaged in the cominission eae sian it would be quite absurd so to construe the enable a person charged with murder under ‘the thira subdivision of section 5 to establish a defence by proviog that he designed the murder. We there- fore, of opinion that the first count of the indictment fully described ie eer of murder in the first de. gree allegi in proper words pia ‘wilfully and feloniously — kil! we while ho was engaged in the . commission of the felony’of burglary, We have thus With the care the ‘mportance of this case requires, considered and disposed of all the questions which were orally dis- cussed before us, We have also carefully c all the allegations of error contained ina int submitted to us, and it is sufficient to say of them that they are clearly without foundation, and were suffi. ciently considered and properly disposed of in the opinions in the Supreme Court, The judgment must be affirmed. All concur—Judge Folger absent. GEORGE D, ELDRIDGE, Clerk to Judges Court of Appeal, EFFECT UPON DOLAN OF THE NEWS. : Dolan wiil now be hanged on the 14th inst, for the murder of James H, Noein Augustlast, He felt keenly - the awful position in which the decision left him; but it was not uatil his counsel, Mr. W. F. Howe, informed him of the decision that he gave up all hope. A de. spatch from Albany early in the morning brought news of the decision to this city, and shortly after the arrival of the telegram a Heratp reporter called on Dotan in his cell, Tho light of hope was so strong in the wretched fellow that he cherished tha belief that the telegram was an “, arrangement” and refused to admit to himsel chance tor life was passed. When he heard from his counsel that the Court had decided adversely in, case he remarked, “Well, it can’t be helped; when @ dog is down keep him down.” Sheriff Conner is already making preparations for the execution of Dolan, Yesterday he ordered the gor. on which the three negroes wore hanged in jcember Inst, to be taken from the loft where it hag been stored siuce that memorable legal tragedy. Aa Good Friday falls on the 14th {t is probable that the Governor will grant Dolan a further bs oa Two deputy sheriffs will be in the company of until the day he is brought out for execution in order to frustrate any attempts at suicide. THIRD AVENUE BANK, DECISION IN THE DECKER CASE—3HE PAPERG SENT TO THE DISTRICT ATTORNEY FOR HIQ CONSIDERATION, Pm In the case of Thompson. W. Decker, ex-President of the Third Avenue Savings Bank, Judge Duffy rendered the following decision yesterday :— Mr. Decker was accused by Mrs, Georgina F. Levion, a depositor, with having on the 26th of Jan- Wary, 1874, signed a false and fraudulent report by which she and others were induced to deposit their savings. A false system of bookkeeping had been ob- served in the bank for many years prior to Mr. Decker’s connection with it. Fictitious values had been given to bonds to swell the assets and make toss the losses occasioned by bad investments on the part of the man- agers of the bank, and so precarious had become its condition that many of tho officers resigned, while many that remained solicited Mr. Decker to accopt the presidency, believing that his well known integrity ag a business man would give confidence to the deposi- tors. Mr. Decker, during his connection with the bank, received uo pecuniary remuneration for his sor< vices. Mr. Decker gave a guarantee bond to Coe} interest on the Tarrytown estate, and under this bon he was to pay per 1am, Which he did pay vol« untarily, and he also executed another bond with others for $100,000 to place the bank in a stronger posi« tion, and in this bond he was obligated to pay $2,500. ‘Mr. Decker had no connection with the bank previoug tohis becoming its president, and during his prest- dency the whole expenses of the bank were less than the; paid their president for his salary. Mr. McDonald, an expert accountant, certifies that had he tree access to the books he would have made an affi« davit against Mr, Decker, charging him with false and fraudulent statements, id from # subsequest exami- nation of the vooks he from any intentional {raud upon the depositors, asa true knowledge of the financial condition of the bank was concealed by false entries, which to itself was cal- culated to deceive any trustee who had not been con- nected with tho bank prior to 1873, From this résumé of the evidence the Court believes that the accused did not wilfully or fraudulently aid or abet the wrong do« ings of the other oificers of the bank; but Inasmuch as Mr. Deckor assumed the trust he became amenable to all its obligations, and as a business man he should have hesitated to affix his signature to the report with- out first having taken at least the ordinary precaution of a personal examination of the books of the bank, pi of the Jaw is no excuse for its violation, and ir. Decker should have taken tho samo care of the moneys of the people that he would of hisown. Mr. Decker is acquitted of any criminal inten}, but his attaching his signature to a paper which had the effect of deceiving the Bank Superintendent and the depost- tors is an act which even, though done with no intent to deceive, this Court would not like to condone, bul would rather have the District Attorney pass upon it, The Court believes that al! laws governing the official acts of those who are intrusted with the savings of the wr should be construed strictly in favor of the eposttors. The papers will, therefore, be sent to the Diatrict Attorney for his consideration, PAYING A DIVIDEND. The People’s Savings Bank, located at the corner of Third avenue and Twenty-third street, which sus ponded several months ago, began paying out a divi- dend of thirty-three and one-third per cent to its cred- itors yesterday morning at ten o’clock. Despite the rain, a very large number of men and women visited the place di banking hours, all of whom were Bromptly paid. it is believed that the last cent of this dividend can be paid within two weeks, BUSINESS TROUBLES. Baldwin, Lowell & Co., dealers in silks, &c, of No, 187 Eighth avenue, have been sold out by the Sheriff, A largo number of the creditors of Messrs. Harris, Richmond & Shafer,, wholesale clothiers, of No. 550 Broadway, assembled yesterday afternoon at the office of Register John Fitch, No, 345 Broadway, to attend a meeting for the pdrpose of electing anassignee. A com- munication was received from the bankrupt firm stating that tho names of some of their creditors had been inad- Vertently omitted from the list which they nad mad¢ out to serve as a guide for the person who served the Rotices of the meeting, for which reason all thecreditora had not boen notified. For that reason the clection of an assignee was not gone into, A committe was appointed to examine into the alfuirs of the bankrupts, Which 1 to report at the next meeting. About fii debut were proven, aggregating about $175,000, = whict + 0 largest the meeting adjourned until next T pe eld y the eM hn are "Sor jose] rooke & Co., Kngland, White & Co., $25,926;' Larbeys & Co. $3,182; A. Le Scott, Brooklyn,’ $6,000; Joba BR, trustee, Fito’ Dennis De Cou 202; A. Carter, 000; Fastman & Co, $4,185; John J. Scott, $4,220; Theodore Timpson, $3,504: $3,000; H. hi “@rimshaw Bros, Paterson, epee ear we Spare eGo, Newark, XJ. $2106; Harding, Colbey Cf ocean ick Connecticut, 171; KB. R. Mudge, Saw; ang & Ca, go pee Clark & Co,, Boston, $3,009; Tiffany ci coting creditors of Mortis & Jacot At tho first m: bh st oe me ry oe Hag to about $3 ‘among which were the iohow Matter $614; Louts Lypman, first meeting of the creditors of lin Hor. was held before Register Dwight ONS, T Beekman grect. Thirty-four claim the be Fomiss binea vile tantra ohress compen tion of trenty-five cents on the dollar in indorsed notes, payable fn six, nine and twelve months, which first meoting of the creditors of John M. & Henry E. Atwater, which was to bave been yesterday at the office of Register Ketchum, Bennott Building, was adjourned till May 9 The following Peon fags & Wallace, Pittsburg, $2, G. Smiley, $890 91; Walter Garr &C0., pn oe : ‘ing insolvent schedule was filed in the Court of Common Pleas dina Ernst Tode to Julvus Woltf—Liabilities, $4,493 89; nominal assets, 266 20; actual essere. $009 17, No bond has been o yet The negotiations for a compromise between tho Woodward Steam Pump Manulectariog Company, of No, 81 Ventre street, and their creditors are satisiac- vorily progressing. A large number of the creditors have accepted the proposition made by the compan; 40 pay ten cents casn and ninety cents in four usual prvelns ark a pes years’ time, The company, , made Yast month to Wilham T Francis, ‘iyeat go tad company received an extension from its creditors. The eh tpestaee eta Drew will hold iw meeting ursday at the oflice of he gd ol No.4 wa ticier inane ioroviag. thei? claime chosing and an assignee in bankruptcy. -