11 Daly 1 | New York Court of Common Pleas | 1849
—The application is twofold. Four of the defendants move for separate trials, and two of these de
The motion to put off the trial must also be denied.
The defendants have not shown due diligence. The trial of this ease has been delayed for a long time; indeed, it has been delayed so long as to afford ground for public complaint. It is very different from the ordinary class of criminal trials. The transaction involved in it is more especially of a public nature. The great number of defendants of counsel and of witnesses distinguish it from other cases. It was set down, therefore, at the beginning of the term for a certain day, that ample time might be afforded to parties to get ready, and all parties were notified that it would be proceeded with to-day. The defendant Judson, having neglected to make an effort to get his witnesses with due diligence, if these witnesses were material, cannot now ask to put off the cause. He has not shown that the witnesses are material. He has not disclosed what he expects to prove by the two witnesses alleged to be» absent.
It would be insufficient for the postponement of the most ordinary suit in a civil court, and is entitled to but little weight on an application, by a single individual, for the postponement of a case of this magnitude, when the parties, witnesses, etc., are so numerous. There should be a good, substantial reason either for postponing the cause or authorizing separate trials, which, in the opinion of a majority of this court, does not appear. For these reasons the applications for separate trials, as, also, to postpone trials, are denied.
The prisoners were thereupon arraigned, and each, through his counsel, pleaded not guilty.
Four days were spent in obtaining a jury. By the act of 1847 every person tried for an offense not punishable with death, or by imprisonment in the state prison for life, is entitled to challenge five jurors peremptorily. Under this act Busteed claimed that each of the prisoners was entitled to five peremptory challenges.
The court held that each prisoner under the act was entitled to five peremptory challenges. If this construction were not given, one prisoner might exhaust the five challenges and place it out of the power of the others to exercise a right which was manifestly designed for the protection of every individual who was put upon his trial for a criminal offense. It would in this case, from the number of persons upon trial, greatly increase the difficulty of obtaining a jury, but that was unavoidably incident to trying so many persons collectively for the crime of creating a riot.
The jury were then called. The first juror called was challenged to the favor, and triers were appointed. He declared that he believed that a riot had occurred on the night, of the 10th of May. Smith insisted that this disqualified him, as that was one of the questions to be tried. Judge Daly then charged the triers, who, after conferring together, found that the juror was competent, upon which he was immediately challenged by the defense peremptorily and set aside. As each juror was called, a challenge to the favor was interposed and tried. Each of the ten counsel exercised the right of interrogating the juror, of discussing the admissibility of the questions put to him, the great bulk of which were overruled by the court as irrelevant, but were again put as each new juror was called, and pertinaciously insisted upon in declamatory speeches designed to prejudice the jury against any trial of the prisoners at all. These occasions were so constantly taken advantage of for declamatory denunciations of the prosecution, and for commentary upon the rights of the prisoners upon political or popular grounds, that at last Whiting, on the part of the prosecution, made an energetic appeal to the bench, in response to which Judge Daly condemned the course of
Mr. Smith asked the judge if any of these remarks applied to him.
Judgé Daly replied that what he said would apply to the counsel for the defense generally.
Mr. Smith retorted, that where rebuke was undeserved it was harmless, and he did not apply one word of all that had just reached his ears from the bench to himself; such reproof was as unjust as it was unmerited. So far as his conduct was concerned, he should pursue a fearless course. He should never quarrel with the law, but should defend the rights of his clients according to the best of his abilities, unawed by courts, counsel, jurors or witnesses.
Judge Daly remarked, in answer, that Mr. Smith was certainly correct in sajdng that rebuke was harmless if undeserved.
The constant interposition of irrelevant questions, of discussing their admissibility, the ruling upon them, the necessity of triers in each case to determine each juror’s qualification, and the right exercised by each counsel to express his views to the triers upon the competency of each juror, led to a great consumption of time and greatly increased the difficulty of procuring a jury. The panel, though a large one, was exhausted on the third day, and the sheriff was ordered by the court to summon one hundred more by the following morning, to which the counsel for the defense objected, upon the ground that the court had no power, under the statute, except to order the additional panel to be summoned in the same manner and upon the same notice as the first panel, which would have involved a delay of several days. The court overruled the objection, and the defense excepted.
1. Joseph Browner, 756 Greenwich street.
2. Cornelius Dewitt, liquor dealer, 135 Amos street.
3. David Page, public house, corner West and Hoboken streets.
4. Patrick Downey, tinsmith, 387 Grand street.
5. Robert Waterhouse, grocer, 51 Pitt street.
6. Charles Buckstone, grocer, 115 Amos street.
7. Wm. Browning, 364 Washington street.
8. Alanson H. Scudder, dry goods, 44 Hammond street.
9. Jeremiah Hawley, fruit merchant, 10 Fulton street.
10. Thomas P. Cooper, grocer, 103 East Broadway.
11. Gorham P. Taylor, grocer, 122 Monroe street,
12. David Newman, grocer, 81 Broad street.
On the opening of the court upon the fifth day Sherwood applied for a separate trial for the prisoner Matthews. The application was denied, and the court ordered the trial to proceed.
Jonas B. Phillips, assistant district attorney, opened the case, on the part of the prosecution, as follows:
Never, in the history of the criminal jurisprudence of this State, has a trial occurred which has created an interest so intense, profound and unusual as this. The prisoners are arraigned as the participators and, some of them, as the getters up of the fearful riot at the opera-house on the 10th of May last, the putting down of which, by a necessary resort to military force, has carried affliction and desolation to so many hearts and homes. Mr. Phillips gave the legal definition of a riot, as laid down in the books of authority, and then proceeded. It cannot be denied
Evidence fob the Prosecution.
All the facts relating to the riot, from the first manifestation of disturbance in the theater, upon the appearance of Macready, until the final suppression of it, with the aid of
In respect to the prisoners, it was shown that Judson had written and published articles in his newspaper drawing public attention to the differences between Forrest and Mac-ready. That on the day preceding the riot he had avowed his intention to carry Forrest through, and that he afterward declared that he would be present to head the movement; that in the course of the day he told one of the witnesses that there would be a disturbance; that he considered himself as the leader of the native American party in the matter; that if Forrest was right he meant to see him through; that the witness told Judson that he had issues enough upon his hands, he thought, without interfering in this; that he, the witness, expected that there would be some hard fighting, and that he advised Judson to keep out of it, to which Judson answered, “ That may be, but I mean to see it out.” He told his brother-in-law that one of the editors of the Courier and Enquirer, had applied to him to head the riot that was to occur that night at the Astor Place opera-house; that he had ascertained that the city authorities meant to call upon the military to support them, and that it was an outrage upon the rights of the people ; that upon leaving his house that evening he had disguised himself in his brother-in-law’s coat, armed himself with a pair of revolvers, and took with him what he called his brother’s Roman sword; that he was asked why he had brought that with him, and he answered that it would make such a show; that when he came to the front of the opera-house he asked if there were any Americans there, and was answered by a young man that he was a Northern Liberty
It was shown that Douglass had thrown stones and had been very active in assaulting the theater. Matthews was seen in the midst of the mob, and was heard to call out, “ Fight, fight.” By another witness he was seen with a stone in his hand in the act of throwing it, and had stooped
O’Neill was arrested with a stone in his hand, and while he was in the act of throwing it.
Green had thrown a stone and was arrested with another in his hand.
Adriance had been very active in the front rank of the rioters. He was seen to throw stones; to rally others together for the rescue of prisoners from the police, and was arrested while in the act of rescuing a prisoner, and with a paving stone in his hand.
Bennett was heard to shout, “ Victory! victory! ’’ in the struggle with the police. It was also shown that he wore a policeman’s star, and was seen swinging something over his head, which the witness could not see distinctly, but which Appeared to him to be a weapon.
Norris and McLaughlin were both seen in the act of throwing stones at the theater, and Hosack was seen to throw stones at the theater and at the military.
The witnesses on the part of the prosecution were subjected to such protracted and annoying cross-examinations, on the part of several of the counsel for the defense, as to lead them frequently to appeal to the court. The counsel for the prosecution repeatedly remonstrated, and called upon the court to check the course of the cross-examination and protect the witnesses. This was especially the case during the cross-examination of the witnesses who proved the complicity of Judson.
One of these witnesses, John McChesney, an acquaintance of Judson, testified that he had had a good opinion of him until he witnessed his conduct in inciting and directing the riot, when he experienced a great revulsion of feeling toward him. This remark, and the clear and consistent account which this witness gave of the acts of Judson, especially while conspiring with and directing a numerous body of young men with whose acts the riot in the street commenced, caused the witness to be subjected to a long cross-examination on the part of Judson’s counsel, the effect of
Judge Daly said that these comments and reflections upon the witness could not be allowed; that the witness stood unimpeached before the court, and that there was nothing in his replies to the questions put to him, which had been uniformly direct and clear, that justified any such remarks upon his motives and character; that the court would not suffer the counsel to browbeat and intimidate a witness in this way. Your client, Mr. Smith, said the judge, shall have a fair trial, but it shall be a thorough and a full one, and no effort on the part of counsel would or should prevent competent testimony from being elicited.
Smith appealed to the full bench to know if the implied censure of Judge Daly was just as to him.
The District Attorney asked if the counsel for the defense were to be allowed to poll the bench in this way. The counsel had, no doubt, some private reason known to himself for doing so.
Judge Daly, after conferring with his associates, said the majority of the court, himself and Alderman Wood, agreed that the course of the counsel justified and demanded, on the part of the court, the remarks which had been made, but that his remaining- associate, Alderman Kelly, thought otherwise. Alderman Kelly, from the commencement to the close of the trial, dissented from every ruling of the court which was made upon consultation.
After the opinion of the majority of the court had been expressed, the foreman of the jury rose and said, that he desired to say, for himself and for others upon the jury, that no court-or jury had ever, in their opinion, been so abused
Smith: The only reply that I have to make is, that you, and any who agree with you, are unfit to sit upon a jury.
Another juryman rising, said, “You utter, sir, what you know is not true.”
Smith appealed to the court.
Judge Daly : You have brought it upon yourself, Mr. Smith. The court will not interfere. If you are through with the witness, let the next be called.
Walter Corbyn was next called, and testified that he had a conversation with Judson a day or two before the riot, respecting what would occur at the opera-house upon the night of the 10th.
District Attorney: Will you now begin and tell us the time of day, conversation and circumstances ?
Objected to by Smith.
District Attorney: State, then, the conversation had with him there?
Smith objected, first, that no riot had been proved; and, secondly,. that the prosecution had no right to go into a conversation with defendant several days before the riot, if there had been one.
Whiting replied, showing that it had been proved—first, that all the defendants were there; and, secondly, that a riot within the definition of the statute had most palpably occurred ; and went on to show that the evidence was admissible.
The judge and district attorney said that no such proposition was before the court.
Smith: It is, virtually; and if the court will not stop me, and interrupt me in my arguments, I will go on and complete my argument.
Judge Daly : The court would not interrupt counsel if it were not necessary.
Smith rejoined, that he had become callous to the rebukes of the court, he had received so many, and said something about out-door influence as controlling the court.
Judge Daly stopped the district attorney, and said—That it was true that a prisoner’s declarations, showing an intent to commit a riot, could not be given in evidence until there was general evidence of a riot and some evidence showing that the prisoner had participated in it. He said he had supposed that counsel familiar with the events of the night of the 10th May would scarcely have insisted that there was no riot in contemplation of law, and that in view of the general notoriety of the circumstances, and the fact that they could be attested by a host of witnesses, he had supposed that the counsel for the defense would admit the fact. If the existence of the riot was a matter of doubt, or if it were difficult of proof, he could perceive the motive for such a course. But it was upon a par with the whole course of conduct that had characterized the defense. The affidavit of the prisoner, Judson, had been read to the court, in which he solemnly swore that he went to the opera-house as a reporter, and had nothing to do with the attempts at vio
The court admitted the question, and with the examination of this witness the evidence for the prosecution was closed.
The question then arose as to the manner in which the ten counsel were to open the defense of their respective clients.
Judge Dalt said they might open their respective defenses to the jury in the order in which the prisoners were named in the indictment, or in any order which they might agree upon among themselves, and whatever order was pursued in the opening would have to be pursued also in the summing-up. The judge further suggested that, if they preferred, some one of the counsel might open the defense to the jurors generally, and the others before they proceeded to call the witnesses to prove their respective defenses. It was finally arranged that each counsel should open before he proceeded to call his witnesses, and in the order in which the prisoners were indicted, and that course was followed.
As one of the principal witnesses examined by the prosecution to prove the complicity of Judson was his brother-in-law, Bennett, a witness was called to show that Bennett was influenced to testify against Judson in consequence of difficulties existing between Judson and his wife, but this witness admitted that Judson had sent the witness to Bennett to settle all differences between them, and to tell him that if he would not come voluntarily to testify against him, that he, Judson, would not publish him and his family in his newspaper. That he was told to tell Bennett that he could easily leave the city if he did not wish to appear against him, and that Judson had said to him that if Bennett did not agree to decline to come forward, he would not go on with the trial, and would have to get it put off. That the witness told him that he felt certain that Bennett would be called as a witness, and that Judson said he thought not unless he came forward voluntarily himself. ■ One or two other witnesses were examined, who testified that they saw Judson in Astor Place, and that he was not doing anything, and another witness that he had asked him at his house at 7 o’clock if he would go to the opera-house, and that he answered that he could not; that his wife was sick; that if he went out of the house at all he would have to go to his lawyers upon business; that if there was a riot it would be a disgrace to the city; that he was opposed to all riots, and was opposed to the riot which occurred in the theater upon the first appearance of Macready. On cross-examination it was shown that the witness was a journeyman printer in the office Avhere Judson’s weekly paper was printed, and a member with him of a secret society. Two other witnesses were called, who testified that they saw the riot throughout, and every thing that occurred, but did not see Judson there at all. . Another witness, Potter, was called, Avho stated on the direct examination that Bennett, the Avitness, had said that he AA'ould be justified in shooting Judson for what Judson had said of him in his paper; but on the further examina
On behalf of the prisoner Thomas Bennett, a witness was called who swore that Bennett was arrested while in the act of picking up a policeman’s star which he found in the street; that the witness was at the prisoner’s side at the time; that it was twilight before any stones were thrown, or any act of violence committed, or the riot in the street had commenced. Two other witnesses testified in part to the same effect, and others were examined to disprove his identity with the one who was heard to shout “ Victory! ” and was seen throwing stones, and several witnesses were called who proved his previous good character.
On behalf of Matthews a witness testified that he went to the opera-house with him and was with him for three hours; that he was quiet, and was merely looking on; that he neither shouted nor threw stones, and that the witness left him there when the military came. Matthews’ brother testified that he was also there with him, and that the prisoner told him to go home and to keep still.
In Douglass’ case two witnesses testified that they were with him the whole of the evening until they were separated by the crowd about nine o’clock; that he took no part in the disturbance, and said, in the coúrse of their conversation, that he did not see why Macready had not as good a right to play as Forrest; and a number of witnesses were called and testified that he was quiet and inoffensive in disposition, was very deaf, and bore an excellent character.
In Adriance’s case the testimony extended only to very satisfactory proof of his previous good character, and an attempt to show that he had been confounded with some other person, but the testimony was too slight to counteract the evidence of the policeman who arrested him with a stone in his hand, while he was attempting the rescue of a prisoner.
In Green’s case the witnesses called failed to establish
The testimonjr in Hosack’s case was designed to show that he had been confounded with the person who had been seen throwing stones at the military, and a large part of it consisted of the degree of darkness, the distance at which objects could be seen or persons identified, the exact period of time at which certain events occurred, and proof of the difference between the prisoner’s dress and appearance that night and that of the person who was assailing the military, together with evidence of his previous good character.
SUMMING UP FOR THE DEFENSE.
E. Blankmah’s Speech.
He commenced by dwelling upon the misfortune which his client, Thomas Bennett, was under in being tried with nine other defendants, in which he had to share in and bear all that was said against them or any of them as rioters; in which he might suffer from the testimony relating to him being confounded with that against the others ; in which it might be difficult to discriminate between what was urged and proved upon his behalf from the whole mass of the testimony. This was the difficulty and the injustice of putting him upon trial with a number of others, and leaving him to take the chances of his case being discriminated or not. He dwelt at length upon what occurred, speaking of it as the natural ebullition of popular rights and American feelings, where the authorities would permit an obnoxious actor to perform, and where there was no other way for the people to prevent it but to arise and assert their rights. It was not the people, but the military and the authorities, who were answerable for what had occurred. He insisted that his client had not been identified, that the witnesses were mistaken, and continued as follows :
The cause has now assumed that solemn feature when it
John D. Shebwood’s Speech.
Mr. Sherwood, in defending Matthews, said: T'íiat in defending one of those accused of riot, it was neither within his line of duty as counsel, nor did it conform to his convictions as a citizen to defend the tumult of the 10th of May. He stood there, amid the counsel of defense, as Matthews stood on the eventful 10th, with a stone in his hand, not to assail the opera-house or the constituted authorities, but to defend that which was dear to his client then, and no less dear now, his person and his liberty. He charged the prosecution with unnecessarily and cruelly joining the
Judge Daly said that it was necessary, in order to charge a person as a rioter, to show some participation on his part in aid and support of the riot, and that being shown, he becomes liable for all that takes place.
Mr. Sherwood: Does your honor mean to say that if Matthews, for example, had been proved to have uttered a single cry on that evening that he would have made himself responsible for all that subsequently occurred, even after his arrest and confinement?
Judge Daly: Yes. If uttered with the intent to incite and encourage others to acts of violence and riot, and if such would be its natural effect.
Mr. Sherwood: Then we live under a worse than ori
“ The tawny lion, springing to get free
His hinder parts—who springs,
And rampant shakes his brindled mane.”
But the public would hold him to the responsibility of producing the heads and chiefs of this outbreak, instead of innocent spectators acting in self-defense. He concluded by an appeal to the jury to uphold the law, by discriminating between the innocent and the guilty, and to rebuke the prosecution for this attempt to delude and cheat public justice.
Mr. Boudinet, counsel for Hosack, next appeared before the jury in behalf of his client. His points were:
1. That Hosack committed no riot; he used no violence until after the first firing of the military. 2. That the
Mr. Cornell next addressed the jury as counsel for Adriance.
He claimed that his client, according to the proof, was dressed differently from the person sworn to by the officers, and his argument was directed to maintaining that the person whose acts were detailed by the officers was not his client.
Mr. Busteed, on behalf of George Douglass, followed, and in his remarks said, that in the course of the trial motives had been attributed to him which would disgrace a Hottentot. The court interrupted him, and asked to whom he meant to apply the remark; if he intended to apply it to the court. Mr. Busteed said he did not, and proceeded with his argument. He came in pretty close collision with the court once or twice during his summing up, but always disclaimed any intention to offend the court. Mr. Busteed claimed that the good character of his client precluded the idea of his guilt; and, besides, that his deafness and his youth ought to appeal to the sympathies of the jury, although not on account of his deafness or his youth did he ask his acquittal, but upon the ground that no riotous intent had been proved against him.
Mr. Schell addressed the jury on behalf of Thomas Green. He said: That in order to convict his client, it must be proved first, that a riot occurred before his client was arrested, and, secondly, that Green was an active partici
Mason spoke briefly for McLaughlin.
Mr. Morrison, counsel for James O’Neill, was the next to address the jury. He said he had no quarrel with the court; on the contrary, he approved throughout of the course of the presiding judge ; nor had he any fault to find with the prosecuting counsel: he did not dispute, nor had he, that there had been a riot. All that he claimed he would undertake to show was, that O’Neill, his client, had been mistaken for somebody else. He was there, but simply as a spectator. His companion, Dutch, was with him, until he lost him in the confusion. Up to that time he had done nothing, nor taken part in any way in the riot. He was seized by the police, as no doubt were many other quiet lookers on, in the confusion and excitement that existed. .This was shown by the fact that a number were arrested against whom nothing could be found. No doubt Savage, the policeman, believed him to be the person whom he saw taking an active part in front of the mob, whom he arrested with a stone in his hand, and who made the declaration, after his arrest, to which Savage testified. Savage came next day to the station-house, and, finding O’Neill there, identified him as the person he had arrested upon the previous night. But he might easily be mistaken, and he was mistaken. He admitted, upon his cross-examination, that there was no light except star light, and that it was pretty dark all about when he arrested the person he afterward supposed to be O’Neill. Gray swore that he could not distinguish a person with
When all the other counsel had closed, Smith rose and moved to quash the indictment.
District Attorney: It is irregular to move to quash the indictment now, after all the evidence has closed, and all the counsel except Mr. Smith have summed up to the jury.
Judge Daly: Ordinarily a motion to quash the indictment should be made before a prisoner enters upon his defense, or before any evidence is given. But it is a matter entirely in the discretion of the court. If the indictment is defective, a prisoner may, after conviction and before sentence, move upon that ground in arrest of judgment, and, as this is a joint indictment, the granting of such a motion as to one would, in effect, be granting it as to all. As this trial has occupied more than two weeks, and as a motion in arrest, for this reason, may be made, if the prisoners or any of them should be found guilty of the offense charged, it would be an economy of the public time to grant the application to quash the indictment now, if there is any ground for it, and I will therefore hear the motion.
Smith moved upon the grounds:
1. That the indictment is defective because it does not aver for what purpose the rioters assembled, and cited Rex v. Ingram, 1 Ld. Raym., 215 ; Rex v. Sudbury, id., 484.
2. It is defective in not averring that the act was done to the terror of the people, and he cited 1 Hawkins’ Pleas of the Crown, 295; 1 Russell on Crimes, 267.
Judge Daly: If the indictment were defective in the matters stated it would be a subject for serious consideration. But it is not. It is very carefully drawn and contains all the averments that are essential. The motion will, therefore, be denied.
It was then arranged that Mr. Whiting should sum up on behalf of the prosecution, that Mr. Smith should follow him, and that the district attorney should close.
James R. Whiting’s Speech.
The time has now come, gentlemen of the jury, when the prosecution is to be heard. The counsel for the defense declare that their clients have been selected as victims to appease the violated law. That some, or at least one, of them has been selected, because there were strong prejudices against him, and that, consequently, it would be an easy thing to make him a victim. After the evidence that has been given, it would seem, from the earnest appeal made to you on the part of some of the counsel for the defense, that you are to shut your eyes altogether to the evidence. That you are to recognize that we are not living under a government of law, but in a community where any one may make use of the bowie knife to redress real or imaginary wrongs; or where any number of men may get together, and, as a popular or political right, put down by violence whatever they think proper, destroy whatever they please, and put in jeopardy any man’s rights, life or property. You are repeatedly urged by the counsel for the defense not to give way to excitement. Why, gentlemen,
Mr. Whiting, in simple language, divested of law terms, here proceeded to tell what was a riot. Every tumultuous assemblage in the streets, consisting of three or more persons, he "said, having a definite object of a private nature to
THE DISTRICT ATTORNEY’S ADDRESS TO THE JURY.
The District Attorney (Mr. McKeon) then addressed the jury:—May it please the Court. Gentlemen of the jury, the moment has at length arrived when it becomes my duty, as the representative of the people in this investigation, to present such views, as in my judgment, should induce you to render a verdict against the prisoners now at your bar. The many days consumed in this trial should admonish me to be brief in any remarks which I may offer. Fortunately, the ability of my associate, in his lucid argument, has relieved me and you from a very extended discussion on my part. You will believe me, gentlemen, when I assure you that nothing but an imperious sense of duty would induce me to trespass on your patience, fatigued and worn out as you. must be by the severe ordeal you have been compelled to submit to. The case, so simple in its nature, has been mystified to that degree, that your minds have been drawn off from the real questions involved in the issue between the State and these defendants. My object shall be to endeavor to lead back your attention to the only question really submitted to your consideration— the participation of these defendants, or any of them, in the riot of the 10th of May last, at the Astor Place Opera House.
The occurrence of that night is part of the annals of the country. It is written in characters of blood, and will remain forever on the page of our municipalTiistory. Into the causes of that disturbance you are not impaneled to inquire. You are not to inquire into the merits of the controversy between two distinguished tragedians. You are not^sworn to inquire whether or not proper measures were rn'ade use of for the prevention or suppression .of the riot. You have been told that the authorities should -have
Having given you these enunciations of the law as to riots, and who are actors, and responsible, I call your attention to the testimony in the cause. The character of the riot has been given to you by several witnesses, but particularly by Captain Carpenter, of the Fifth District Police, Captain Tilley, of the Thirteenth District, and Recorder Tallmadge. You must be satisfied that in Astor Place and in Eighth Street, and in the streets leading to the Opera-House, thousands were collected together on the night of the 10th May. In that crowd were found the rioters from the neighboring city of Philadelphia, which has been disgraced by scenes of turbulence and blood. In the same crowd were discovered a notorious set of rowdies, known to themselves and the police as the “ Short Boys.” It is stated in the evidence these rioters have their place of meeting. Volleys of stones were thrown, and whilst they were being thrown the cry was heard, “ stand by, Short Boj’S, don’t let them arrest them.” This cry was heard whenever there was an attempt by the police to arrest any persons engaged in the riot. You cannot but remember the statement of Recorder Tallmadge, that he left the Opera House, went into the street, and there found the mob assailing the Opera House with stones. The police were stationed on the walk on the outside; attacks on attacks made on the police were repelled; arrests were made by the police, of the rioters, and attempts at rescue made; stones were thrown at the house, breaking the windows. The missiles seriously injured also several policemen. Many engaged in the suppression of the disturbance were struck with stones. The stones came in repeatedly from Astor Place and Eighth Street into the theater, and endangered the lives of the persons within. The panels of the door were forced in. The police were unable to resist the force of the mob rushing on the Opera House. Missiles were thrown in every direction. The policemen and the Recorder himself were injured. To such
The testimony of Captain Carpenter shows that in the
Can any one doubt that the scene which has been depicted comes within the definition of a riot ? Has it not all the elements of a riot as given by the legal authorities ? To the court you must refer for the law on this point, and according to your oaths, as you are bound to take the evidence of the facts from the witnesses on the stand, so you are bound to take the evidence of the law from the court. Assuming that the court will concur with the prosecution in their view of the law, that the evidence establishes a riot, then every person charged in this indictment who aided, encouraged or promoted it by words, gestures, or other acts, are principals. It is not necessary, as I have before stated, that a party should commit violence. Being armed with offensive weapons, or making use of threatening or turbulent gestures, or any act of assistance or encouragement, is sufficient to make him a principal.
Briefly, I will endeavor to call your recollection 'to the evidence in each case. I haves condensed the testimony, and I hope to satisfy your minds, beyond a reasonable doubt, of the propriety of the conviction of every prisoner now on his trial. I want your patient attention in a matter of deep interest, as well to these prisoners as to this community. The evidence against Bennett is given by Captain Tilley, Policemen Davis, Smith, Hogan, Francis Bennett, and, I may add, Robbins and Jackson, witnesses introduced by the defendant himself. Tilley swears that, as he was going round to recognize the rioters, he saw Judson in communication with a crowd of young men and prisoner Bennett. The young men were standing in the street; Judson on the sidewalk, with his hands behind him. “I could see one of these young men,” says Tilley, “ go from the crowd and talk with Judson.” Captain Tilley then pointed out Bennett, sitting on Judson’s left, in this room, as the young man, He further stated that he covered his
The apparent inconsistencies of the testimony are nothing in comparison with the positive assertions of witnesses as to his identification and conduct. The prisoner Matthews is charged on the testimony of Policeman Duryea, who states that he saw Matthews with a number of persons near him. The policeman’s attention was first drawn to him as he was in the act of throwing something towards the building. He then stooped down for another stone, but before he stooped the policeman told him to go away or he would be arrested. He then moved a little away, but stooped to pick up another stone. He picked it up; he had the stone iu his hand in the act of throwing when he was arrested by the witness. The stone was about the size of a goose egg. He held on the stone until he got inside of the house. What can be more distinct and unequivocal than this evidence ? The prisoner Hosack is charged on the testi
The prisoner Adriance must be convicted on the evidence of policeman Birdsall, who has proved that he saw Adriance endeavor to rescue a prisoner who had been arrested by an officer in Astor Place, between the main door of the opera-house and Lafayette Place. All cried out, “ Don’t let them take him.” Adriance said, “You sons of b-s,” and raised his hand. “ I grabbed it,” says the witness, “ as a stone flew out of his hand, and struck the officer on the back of the neck. I held on to Adriance, and did not let go of him until I took him in where the prisoners were. I am positive that Adriance is the man; I saw him throw the stone ; if I had the least shadow of doubt, I would not have made an affidavit against him.” What can be more explicit than this declaration ? The jury will remember the manner in which the question was put by me. I confess, the assertion of his honorable counsel, and none more so at this bar, that Adriance was innocent, had deeply impressed me, and
Your attention will next be called to the conduct of Douglass on that night. Permit me to call your recollection to the fact admitted by the prisoner’s counsel, that the prisoner was deaf, and to the fact proved by his witness McManus, of Douglass being there. The prosecution adds to that testimony the evidence of policeman Walsh that he saw Douglass in a crowd of riotous persons that were assailing the opera-house with stones. He was in a mob, engaged in throwing missiles of different kinds. He saw Douglass throw a stone, or attempt to throw it; and he seized him immediately. He was taken into the opera-house. He was in a mob of persons yelling and shouting, and throwing missiles. The rallying cry was “ Fight! fight! ” Douglass then threw a stone at the opera-house. It seemed to slip or drop from his hand; he stooped and picked it up. As to identity, he swears to the best of his judgment he is the man. He appeared to be deaf; he was very cool after he was brought in. The witness said to him, he was very foolish for being there; the prisoner remarked he only threw one stone. Remember this important fact was elicited on cross-examination by the skillful and modest counsel of Douglass. The witness, on cross-examination, stated he saw the stone in Douglass’s hand. He made the motion as if throwing it; and when the witness arrested him, simul
One of the most striking facts against Douglass is, that it appears from this affidavit that he declined to ask Walsh at that time any questions. Why did he not, on the 11th of May last, endeavor to show, from a cross-examination of Walsh, that there was some mistake ? Not an, effort was made then, because it would have been utterly unsuccessful. The unparalleled effrontery of such an attempt was left for those who imagined they could brow-beat a witness or mislead a jury. It is for you to determine how far this attempt shall now be successful. It is for you to determine whether or not the prisoner’s own admission, that he threw a stone, is to be credited. The court and jury will,, remember that in reply to a question from the court, the witness stated there was light from the Opera House, by which he distinguished Douglass. It was sufficiently light to distinguish persons in the crowd where Douglass was. The windows along the amphitheatre were lighted. The lights over the-door were all boarded up. Douglass was not out of witness’s possession from the time of his arrest until placed in the Opera House. The prisoner Green is implicated by the testimony of policeman McManus, who testifies he arrested him between the entrance of the Opera House on. Astor Place and the east end of the building. He was. standing ten or fifteen feet from the curb stone, on the street, among a number of persons. When first seen by the-witness, he had thrown a stone. The witness then concealed his star, went within two feet of him, and saw both his
The effort made to shake Mr. McManus’ testimony is not successful. Dr. Ogden confirms all that McManus has stated here. McManus told Dr. Ogden, as the doctor states, that Green had sand in his hand, and he saw Green throw the stone. Peaceable as Green may have been heretofore, this testimony shows a determination on his part to rush into the thickest of the melee in the inside of the house, and an active participation in the riotous scenes without.
The next prisoner is O’Neill, against whom policeman Savage appears. He testifies he saw O’Neill in Astor Place in front of the mob, with others. He saw him pick up a stone .and throw it up to them, and as he drew back his hand the -witness grabbed him and held on to him until he got him into the theater; he dropped the stone after he was in the theater; there was a crowd all round O’Neill. After his arrest, witness spoke to him. He then said he “ did not intend to get into a muss,”—he threw stones only because he saw others do so. He picked up the stones very coolly.
With O’Neill closes the list of prisoners in this indictment, and now on trial, with the exception of Judson. Before leaving them, permit me to say that, to my mind, the evidence against all is conclusive. I will not deny that many of them are young—some of them with families; but I cannot but also remember that their misdeeds on that awful night brought agony and death to many, and sent many of their fellow beings unprepared before their God,— that the blood of the sacrificed rises in judgment against them.; and however we may pity those with whom they are
Last and mightiest, and, might I not add, the meanest of the band, stands Edward Z. C. Judson, alias Ned Buntline, The other defendants have proved character by witnesses— Judson has had his character stamped by the testimony. He stands admitted “ the chief architect of ruin.” On that picture Judson stands pre-eminently forth as the great figure on that night of horror. His counsel says he is a gentleman by birth, a scholar by education, and a man of genius. I know not rvhere the counsel obtains his gauge of a gentleman’s character when Judson is his great exemplar. A gentleman is not found armed with sword and pistols in the midst of unarmed men—a gentleman is not found associated with Philadelphia Killers, and co-operating with riotous bands of “ Short Boys.”
The education which I had supposed useful was that which taught men to respect themselves—to respect their fellow men, and to respect the laws of their country. The education of Judson, as developed on this trial, shows him an adept in the school of violence and bloodshed. The counsel states he has served his country in the army and nav)'. Either service would satisfy the ambition of most men, but both seemed to have been unsatisfactory to Judson. The counsel for the defense states he has fought the battles of his country. The history of his country, as I read it, contains no statement of the battles he has fought; no medal has been voted to him by the assembled representatives of a grateful people; but, perhaps, in reviewing his life, art might find a subject for a proper medallion. Perhaps it might present the scene of Venus conquering Mars, and on the reverse this motto: “ At Hastings I have ruined my king.” Whatever he has been, to-day we find him not in the army or navy, but the co-proprietor of a vile newspaper—a beast of prey hanging on the great camp of humanity, and living on the carrion of bloated character and vice. Why has he left the service? Why has he abandoned both the camp and the desk? There must have
Fortunate for the military and naval service—which embraces in its list names distinguished for private virtue, for valor, for submission to law,—that' it is not disgraced by a name which hereafter will be synonymous with deep hypocrisy and cowardly ruffianism. Fortunate that it is forever separated from the name of a man who has been the leader of a riot which, has disgraced the great metropolis of the western world. But why refer to his past career? Why was not the evidence produced of good character? The answer is obvious. The counsel for the defense well knew that until evidence of good character was offered, none proving Judson infamous could be offered by the prosecution. This is the rule of law. Had such evidence been at hand, would it not have been produced ? Most assuredly. But I ask for no proof of bad character, except such as is here in evidence. I ask for no better evidence of his degraded position, his deep malignity of heart, his utter want of feeling, his reckless, remorseless, and blackened heart, than his conduct on the night of the riot. The testimony against Judson is two-fold. It may be divided into preparation for the riot, and his participation in its awful results. He cannot 'plead in extenuation that he was acting under sudden promptings of the excited scene of the evening of the 10th May. He had deliberated — he had planned—he had armed himself for the affray, and went to the opera-house resolved on turbulence and riot. Mr. Corbyn testifies that on the 8th or 9th of May last Judson turned into Barclay Street with a wagon,- and addressing the witness said: “ Corbyn, you are the very man I wanted to see; where does Ned Forrest live?” The witness answered, it was somewhere in Chelsea. Judson then said,
We will now follow him in his course of seeing this matter out. We come next to the testimony of Francis Bennett. Judson is fixed with guilt, by his exclamation that “he would see the muss out,” as supported by the statement of Corbyn. Omitting for the present Bennett’s testimony, Captain Tilley is introduced by the prosecution. You may remember, in the description of the riot, Captain Tilley stated he was in the Opera House, and the riot and tumult in Eighth street induced him to ask for a force to clear the street. Whilst going around to recognize those who were in the riot, Captain Tilley says, I saw a communication between Mr. Judson and a crowd of young men, and the defendant Bennett, as I believe; Judson was on the sidewalk, and then I could see one of these young men go from the crowd and talk to Judson, who had his hands behind him; I got my star inside, and went up behind Judson to hear what he had to say; he leaned over and entered into a conversation in a low tone with the young man in front, and Bennett on his left. Captain Tilley heard but part of the conversation—“It was a shame Americans should be used so ”—that was in connection with other language. The man who came from the party in the street, as he turned from Judson, said, “Now, boys, for a shower.” Prior to that I heard Judson say, “ Boj's, whatever is to be done, must be done quickly, because the militaiy are coming.” When the man said, “Now for a shower,” Judson said, “ Hold on, boys, till you ar'e all ready.” With that, a volley of stones went against the Opera House. Captain Tilley states he went into the Opera House, to get suf
Little did Judson reck the consequences of such a cry, or such a movement. Little did he care for the consequences of an inroad into that building, crowded to excess; little did he care what mangling of limbs or destruction of human life might follow on such an act. Does not the proposition fully justify the character I gave him of a reckless and remorseless heart ? Nay, more, when the authorities were deeply engaged in the suppression of the mob and driving back the rioters, Judson cried out, “Don’t back down,” and said the ordering of the military was an insult to the people, that they must not be alarmed, the military had nothing but blank cartridges.
The District Attorney then referred to the testimony of the witnesses as to Judson’s conduct in exciting the mob and directing their movements, and to the testimony of Mrs. Bennett, that Judson’s pistols were brought back to
If there be, gentlemen, one striking element in the American character, it is a love of order. Each man feels that this is a firm foundation on which rises the superstructure of our liberties. Each man feels that amidst disorder and chaos there can be no security for life or propertjr, and, under the influence of that feeling, submission to law predominates throughout the community. This love of order is strikingly developed in every period of our history, and in every action of this confederacy. The same spirit which
That verdict will remain
“ A great sea mart for all time,”
a monument of the intelligence and integrity of jurors—of their devotion to the laws, and, above all, their determination to uphold and sustain good order and peace in this metropolis.
Judge Daly’s Charge.
Judge Daly charged the jury as follows:
Gentlemen of the Jury: If this was an ordinary case, I would consider my duty sufficiently discharged by stating the law pertaining to it, and giving you such an analysis of the evidence as would assist you in ascertaining the guilt or innocence of the prisoners. But it is no ordinary case. There are principles involved in it of the deepest moment— considerations growing out of it which affect the whole frame-work of society. It is true, that it is not the first
As a nation becomes more free, the authority of the law must advance—the rights of individuals are more closely discriminated and subjected to more exact definition. To preserve the just equipoise of society, therefore—to keep the complicated relations of an advancing civilization in harmonious action, the supreme authority of the law, and the obedience of the people to it, become the first of national necessities. When instituted under a free government, by the popular will, and liable to be changed whenever the people decree it, the obligation to obey it, while in force, is one of those fundamental truths which, in a free government, needs but to be stated. In other lands the law is regarded as something antagonistic to the people. It is clothed in the trappings of power and decked in the pomp of authority—the mandate of the few for the government
All have, therefore, a personal interest in increasing the authority of the law; and when we do aught to impair its force, or weaken its influence, we but turn the sword against our own household, and pull down the pillars of the temple that shelters us. A great work was accomplished for man, and man’s development, in the formation of the government under which we live. The framers of that government have left us institutions in which the rights of the individual are more distinctly recognized and secured by higher guaranties than they had ever been before. A great political structure has been reared for us, and to us is committed the comparatively trifling duty of preserving it. Whatever, therefore, may impair its stability, it is the duty of all to unite in preventing. If inroads are made upon the rights it guarantees, they are to be resisted, come from what source they will—from a ruler or a common man. We too frequently lose sight of the tyranny of the man, from the position he occupies in societ)’-; forgetful that the aristocrat by nature may be detected in rags, as well as found clothed in purple.
A man conforms to the Christian precept and the republican standard, in proportion as he respects the rights of his fellow-man; and if he manifests the disposition to infringe them, he is a tyrant by nature, and is to be resisted as such. The act of the rioter of our day, invading the sanctuary of a private dwelling, and trampling upon the rights of his fellow-men, brings us back to the barbarism of the middle
Come, therefore, from what source it will, the attempt to overthrow the supremacy of the law by force and violence is to be resisted, and that promptly, at the outset. As it is impossible to tell, from the spark of ignition, how far the conflagration may extend, so is it impossible to discern, in the first gathering of a popular tumult, what consequences may follow it—whether it will be but the affair of a day, or grow big with the destiny of a nation. The records of the past are studded with too many instances of society given up to the sanguinary dominion of mobs not to know their nature and feel alive to their danger. Such scenes are the elements that bring to fearful development the latent ferocity of man’s nature; in which the worst men come up to the surface and exercise control and dominion. If they are permitted to go on unchecked, disorder creeps into the State—disorder, the parent of that worst of oppressions which is born of anarchy, and subject to the uncertain chances of which the victor of to-day becomes the victim to-morrow. No, gentlemen, the blessings of liberty are the blessings of law; the security of both, the preservation of order; and he who, wantonly and wilfully, disturbs it, is to be treated as the enemy of his race, and the foe of society.
These considerations, gentlemen, meet us at the threshold of the case. I advert to them, because the frequent recurrence of these scenes of violence and disorder has given countenance to the unfounded opinion, that they are to be regarded as the natural effect of the working of our free institutions. The inefficiency of courts, or the unwillingness of juries to convict in such cases, have led many to think that the laws are powerless to repress them. So far have things gone in the lax administration of justice, that
Within a comparatively recent period, the municipal council of a neighboring city deliberately passed a resolution to the effect that such occasional outbreaks were necessary to the cultivation of brave and courageous habits in our youth, as if the noble qualitjr of courage was attested by burning the dwellings of defenseless women, and defacing temples erected to the worship of a common God; propounding the monstrous doctrine, that it is essential that the youth of this country should pass through a pupilage of bloodshed; that to fit him for the rational duties of the citizen, he should be encouraged to the development of propensities in which the savage is his equal. I address these considerations strongly to you, gentlemen, because if the law has been violated it rests with you whether the laws shall be vindicated or not; for, in criminal cases, however much we may dwell upon laws and constitutions, to the practical power wielded in the jury box must we come at last. It depends upon the conscientiousness with which that power is exercised, whether justice can be administered or not.
To the jury must the citizen turn, with high hope, or with anxious fear, for everything depends upon the integrity and firmness of jurors, as every thing is to be feared from their corruption or servilitju A man may do, as respects himself, or in his personal matters, what he may not do as a public man. He alone is affected. In the one case an act may be forgiven as a weakness, which approximates in the other to the nature of a crime. This is a consideration that a juror is never to lose sight of when he enters upon the discharge of public duties ; his individual will or wishes are to be merged in the great duty that he owes to society. This will apply to every case in which a juror is called to act; but there are certain cases, which, from the consequences that follow a dereliction from duty, increase the responsibility of the juror in proportion to the results which that dereliction produces. This is one of those cases. That
In connection with what I have already said, there are other considerations to which your attention should be drawn. A great portion of this trial, both in the introduction of the testimony, and in the comments of counsel, has been devoted to the consideration of matters which have nothing to do with the question of the guilt or the innocence of the prisoners. We can have nothing to do with the question whether the conduct of the authorities was censurable or otherwise—whether a more judicious course might have been pursued than the one adopted. The authorities must answer to the law if they have violated it in any particular; or if they are not within the pale of legal responsibility, they must answer at the great bar of public opinion. Neither is it any part of our inquiry to determine whether the interposition of the military was necessary—whether the disturbance could have been quelled by the police force without their aid. This forms no part of the question respecting the guilt or innocence of the prisoners. They all, with one exception, stand indicted for acts alleged to have been done before the military fired, and they were arrested; in fact, before the military came upon the ground. Their acts were not provoked by the firing, or the appearance of the military. And if they were, it would not excuse such acts. The military were there by the order of the city authorities,
Before proceeding to the particular examination of the evidence for and against the prisoners, it is proper that your attention should be called to some general matters arising out of the nature of that evidence. As respects the prisoners here, the main question is one of their identity with the persons who did the acts described by the witnesses, as it is possible that in such a tumultuous assemblage, mistakes may have occurred in making arrests. It is due to these persons that you should discriminate most closely in this respect, and be well satisfied that they are the persons who did the acts with which they are charged. It would be lamentable, indeed, if any of them should be convicted for the acts of others. You will therefore take into consideration the darkness of the night, the extinguishment of the lamps, and generally the excited nature of the scene. You must discriminate, also, between testimony which is positive and that which is purely negative. A witness who swears that he saw an act done is not to be disbelieved, though many who were present declare that they did not see it, unless their proximity, their number and their opportunity for observation are such as to render it impossible that it .could have transpired without their observing it. .
A great portion of this case has been occupied in testimony as to the exact period of time at which particular events occurred, and much comment has been made by counsel upon the inconsistency of witnesses with each other in this respect. This is a matter which is entitled to but little
We now approach, gentlemen, the true subject of your inquiry, and the questions it presents, are few, plain, and fraught with no intrinsic difficulty. You are simply to say, when advised by the court as to the law, whether a riot occurred on the night of the 10th of May, and whether the defendants participated in it. JjThe right of the people peacefully to assemble to' discuss or deliberate upon matters of a public or private nature, is one of those fundamental rights secured by the constitution itself, and the privilege of animadverting freely upon public men and public measures is an incident growing out of that right. This is plainly distinguishable, however, from assembling with an intent to commit violence upon persons or property, to resist the execution of the laws, to disturb public order, or for the perpetration of acts inspiring public terror or alarm. Any disturbance of public order by force is a breach of the
It is insisted by the counsel that there is no evidence in the case of a common design, to constitute the offense of a riot. It is declared by Sir Wm. Blackstone, that a riot may exist with or without a common design. I have embraced a common design, however, in the definition I have given you, although I might with safety have rested upon the definition of Blackstone, whose luminous mind, quick perception,' and ready power of analysis, enabled him, in almost every instance, to subject the matter upon which he treated, to definitions so exact and perfect as to serve the purpose of all future time. But there is abundant evidence of a common design which was unlawful: the attempt to rush into the theater; a combination of a large number of individuals to injure the building, who were engaged in assailing it with stones, breaking the windows and forcing in the doors; the proposition to enter the building with ladders from the rear—the ladders being ready and prepared for that purpose—and drive out those who were inside, and who had a lawful right to remain there; the proposition to create confusion and tumult inside, by" raising the cry of fire; the proposition of the defendant, Judson, to get to-
Judge Daly here entered into an elaborate review of the testimony elicited from the various witnesses and placed before the jury, in a concise and lucid manner, the whole chain of evidence. He commented strongly in favor of the accused upon the evidence they bad furnished of previous good character. This was, he said, a matter entitled to very great consideration. He was well panoplied, who, when brought into a court of justice to answer an accusation, could throw himself back upon a life well spent. All the accused, with the exception of the defendant Judson, had furnished testimon} upon this point most clear and satisfactory. If the evidence of their participation, therefore, was not direct, positive and conclusive, their previous good character should outweigh in the balance, and as respects the defendant Judson, who had not put his character in issue, he was entitled to be regarded here as of good character, for the law draws that presumption in favor of every accused person, until the contrary appears. Much had been said by his counsel in vindication of his character, and much by the prosecuting officer in reply. This was to be treated as out of the case. He stood here upon the evidence ; he was to be judged by that, and that alone. If he were the vilest creature that ever lived he had rights here that were not to be taken from him, and unless his guilty participation could be distinctly and clearly made out from the evidence, he should be acquitted.
The judge, after some further comments upon the testimony, concluded as folloAvs :—“ I commit this case, gentlemen, into your hands. If you haAe any doubt as to the guilt of any or all of these prisoners, then, in the benevolent charity of the law, give them the benefit of that doubt and acquit them ; but if their participation be palpably proved by the testimony, and you fail 'to find according to the fact,
The jury retired, and after an absence of about three hours, returned a verdict of guilty against all of the defendants.
(September 29th, 1849.)
Sentence of the Rioters.
The court convened at 11 o’clock, but before that time— for an hour or more previously—the vestibule and all the corridors leading to the court-room were crowded by persons who were anxious to hear the sentence.
Soon after convening the members of the court adjourned, for the purpose of consultation, to the assistant aldermen’s room, and when they took their seats again
Mr. Smith, counsel for Judson, made a motion in arrest of judgment, which motion was denied, to which the counsel excepted; and Mr. BlanJcman, counsel for Bennett, made a similar motion for arrest of judgment, which likewise was denied. Mr. Sherwood, of counsel for Matthews, and Mr. Cornell, of counsel for Adriance, read affidavits in mitigation of punishment; and after all,these proceedings had been concluded,
The defendant Judson proceeded to address the court at length. He said he had no favors to ask, and he expected no mercy. He had been tried by a prejudiced jury, and he might say, by a prejudiced court. His testimonials in favor of character, though freely offered to the prosecution, had neither been received nor read. He could safely lay his hand upon his heart, and appeal to his God, that he was the victim of an unjust persecution; that the testimony produced against him did not show that he had anything to do with the riot. His views, as expressed in his paper on the very day when the riot occurred, would show that he was in favor of law and order; that he was indifferent as be
Judge Daly here said that the court would hear everything he had to offer on that point.
He then read a letter from Commodore Moore. After some further remarks, he said one of the jurors, Mr. Page, had declared during the progress of the trial, after he had left the court, that he thought the defendants ought to be hung. In conclusion, he would say the influence of the press, and of public opinion, had been brought against him; he had not had a fair trial—he felt that he was a victim—he stood there a martyr.
Judge Daly said, as respects the prisoners Matthews, Bennett, Douglass and O’Neill, the court have taken into consideration their youth and inexperience; so far as they are concerned, the majesty of the law has been greatly vindicated by their conviction, and a very slight punishment in their case is sufficient for all the purposes which punishment was designed to effect. They are not only young, but some of them have wives and children, and others stand honorably before the court as devoting the earnings of their young years to the support of aged and dependent parents. They will be sentenced, therefore, but to an imprisonment in the city, prison for the term of thirty days.
As respects the prisoner Green, he is of mature age, and cannot plead youthful indiscretion as an excuse for his acts. He has read an affidavit to the court.
The judge then proceeded to point out and comment upon the manifest inconsistencies apparent upon the face of the affidavit; still, as he had borne an irreproachable character, the court will be lenient. He will be sentenced to the penitentiary for the term of one month.
The prisoner Adrianee is also young; he has a family, and his previous character is unstained. But the evidence
The prisoner Judson has been patiently heard by the court. He has complained that he has been tried by a prejudiced jury and a prejudiced court; and that there is no evidence of his guilt. The jury are not here to listen to his complaint. They have performed their duty and .have been discharged. They were indiscriminately selected from the great body of the prisoners’ fellow-citizens; and it is due to them to say that they have been subjected to the most searching legal tests, and so far as these tests would indicate, they were as impartial a jury as have ever been impanneled. As respects the prejudice of the court, it is not for them to say how far they maybe subject to the most common of human infirmities. They can but say that they feel an inward consciousness that they have done everything to secure to you a fair and impartial trial. No human tribunal is infallible. They have frequently interposed, in the course of the trial, with the prosecuting officers, and induced them to waive their objections to testimony not strictly legal, in the vague expectation that it might possibly tend to make out the innocence of the prisoners. It is not true that you have been precluded from producing testimonials respecting your character. All the prisoners have given evidence of character excepting yourself. They have built up a strong wall about them, which stands them in stead in this their hour of trial. You have not seen fit to
Judson was then sentenced to one year’s imprisonment in the penitentiary, and a fine of $250—to be imprisoned until paid.
