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for the defendant, and he is actually engaged in the trial of an insurance case, in Brooklyn; which will probably occupy all day to-day, and perhaps to-morrow also.
THE RECORDER.—When this case was last up, it was put off in consequence of the engagement of Mr. Stoughton, in the other room. The court then expressly stated, that if any other engagement was entered into by Mr. Stoughton, before this was disposed of, the case would be forced on.
MR. ANDREWS.—Your honor understands how much Mr. Stoughton is engaged in other causes; and the cause on trial in Brooklyn is one which had been postponed from day to day till he got through his engagement in the next room, and he has been forced into that trial. Otherwise, I should not have asked for delay in this case. It is not an unreasonable application, and we only ask for delay until the day after to-morrow. Carlin will be in the unfortunate position of being without counsel, if the case is forced on to-day.
THE RECORDER.—I cannot reverse the order I made before. MR. ANDREWS.-I understood from Mr. Stoughton, that he had informed Mr. Whiting of his engagement in Brooklyn; and I supposed that he would have had no objection to the postponement of the trial. I am not myself sufficiently posted up in the matter to undertake to try the case. In addition to that, Mr. Beebe, who is an important witness for the prisoner, and who will also probably have to be present to advise, is engaged before the United States Commissioner, and it will be impossible for him to attend. I certainly think it is not an unreasonable application.
THE RECORDER.—I have no objection to any arrangement which can be made with the counsel for the prosecution; but, otherwise, I cannot change the order which I made before.
MR. ANDREWS.—Mr. Whiting understands how these engagements will unfortunately occur, and I appeal to his generosity in the matter. [A pause, and some private conversation between the counsel.] I cannot induce the counsel on the other side to agree to anything. Your honor stated, that this case had been postponed from time to time, till Mr. Stoughton got through with his engagement in the other room. He got through on Tuesday night, and was ready, and could have tried this case yesterday. But there was no court; and this morning he has been forced into a trial in Brooklyn, that was set down for Monday last, but was postponed on his account. It seems to me, that it is not at all unreasonable, under that state of facts, to ask the Court to postpone this matter, until the day after to-morrow, and then I will engage that the case shall go on. I will try it myself if no other counsel is ready.
THE RECORDER. -I cannot, without the consent of the counsel for the prosecution, change the order. I said expressly, when the case was last up, that it must come on when next called; and that the counsel must hold this engagement paramount to any other. Under those circumstances; having made that order I see no reason why I should change it.
MR. ANDREWS.—The fact that the court was not in session on the day when Mr. Stoughton was at liberty to try this case, forced him into the other engagement. If the court had been in session yesterday, he could have tried it. But he has been absolutely compelled to go on with another case. I repeat that I can see nothing unreasonable in the request, that the case should be put off until the day after to-morrow.
THE RECORDER.—That would have the effect of carrying the case over this term; because the next case that would come up, would occupy the balance of the term.
Mr. Andrews.—Well, if the Court insists that the case shall go on, it must go on without counsel for the accused. The counsel for the prosecution knows how these engagements are, as well as the Court and myself.
THE RECORDER.—Under ordinary circumstances, I should not hesitate to say that I considered the application a very proper one. But this case has been so often delayed, the parties have been so often here, and the witnesses have been so often in attendance, and have been put off from time to time in consequence of the engagements of counsel, that I don't think I should be doing justice to the parties, to the witnesses, and to the complainant, if I were to reverse the special order made in reference to the case.
MR. ANDREWS.-I understood that the case had been laid over until yesterday; but the court was not held yesterday. I saw Mr. Stoughton last night, and tried to see him again this morning, but he was away. It places the prisoner in this position, that he will be obliged to go on without counsel.
THE RECORDER.—It was understood that the case in the next room would not be through until to-day, if then; and the case was therefore set down for to-day, and the subpænas given out for to-day.
MR. ANDREWS.—Well, if your honor says the case must go on today, the prisoner must go on with it himself; for I certainly shall not undertake to go on with it. I have asked the counsel for the prosecution to consent to a postponement, and he says he will not give any consent. I certainly will not go on with it myself, to-day.
THE RECORDER.—I am sorry I cannot comply with your request ; but I do not consider that I should be doing justice to the parties in doing so. Unless you can make some arrangement with the counsel for the prosecution, the case must go on.
MR. ANDREWS then left the court-room, and the clerk commenced empannelling a jury.
Mr. Henry L. CLINTON interposed, and addressed the Court. He said :—Before the empannelling of the jury proceeds, I have a word to say. The defendant has just this moment spoken to me in this matter. He is left entirely without counsel, and I have no objection whatever to taking hold of the case. But your honor will readily perceive that I could not undertake a case of this moment, and do it with any justice to him, or satisfaction to myself, on a moment's notice; being totally unacquainted with the facts of the case, and everything connected with it. If the Court will grant sufficient delay to enable me to look into the case, I will go on with it. It further appears that Mr. Beebe, who was the attorney in
the case which originated this difficulty, as I understand it, and who is a most important and material witness for the defence, is absent.
THE RECORDER.—He is below, in the U. S. District Court.
Mr. Clinton.—Well, Mr. Carlin has sent for him, and I trust your honor will let the matter remain in statu quo till we can hear from him, and if necessary take the regular steps to subpæna him.
Mr. Wurting.—This case, if your honor please, has been pending since March last. Mr. Beebe, who was the original counsel for the defendant, came in and moved to quash the indictment, under the impression that it presented certain serious questions of law which your honor disposed of, reserving, however, the right to reconsider the questions presented. The facts in the case are very few and simple, and the gentleman on the other side can learn them all in half an hour. I am willing to agree to a statement of facts which shall go to the jury, without summing up, under the charge of your honor, and any questions of law the gentleman wishes to raise can be discussed hereafter. About the facts there can be no doubt. We have all agreed on them from the beginning. They are few and simple. This is perhaps the first indictment which has been found under this statute, and it becomes important for the protection of the rights of the community that the questions arising under the statute should be settled. The prosecutor has attended from day to day, and Carlin never has been ready. On the last occasion when the case was set down for trial, then it suddenly appeared that Mr. Beebe was out of the case, and another counsel in his place. Under the circumstances, I think the Court ought not to grant much indulgence. The Court will, I hope, take into consideration the fact, that the horse was not returned until this indictment was found. All the facts and circumstances of the case can be ascertained in five minutes.
MR. CLINTON.—But if it involves all these questions of law-?
MR. WHITING.—I would almost be willing to consent to take a special verdict on the finding of the facts.
THE RECORDER. I should not allow this case to go off, if you
did not find Mr. Beebe; because, after my explicit statement that it should come on, it would be doing great injustice to the other side to permit it. I will say to the counsel that when the question was before me on the motion to quash the indictment, I hesitated, for I had great doubts in relation to the law, whether the indictment could be sustained.
MR. CLINTON.—Has a motion to quash been made ?
THE RECORDER.—It has been made and decided. I consider it one of those questions which ought to be presented to the Supreme Court, to have a decision on the construction of that statute ; for it is very important, and one about which I have great doubt. So far as the question of fact is concerned, that is a matter of little moment; because the case will go up, beyond any question, for the purpose of obtaining a construction of that statute.
Mr. Clinton.—But if the defendant is entitled to an acquittal, it is certainly important to procure it without going to the Supreme Court.
THE RECORDER.—I shall adhere to the decision I made, that this case is one that comes within that statute, for the purpose of raising that point. I shall so instruct the jury. It is, therefore, simply a question of fact, which the counsel can arrive at as we progress. It will not require any examination.
Me. Clinton.—Is the indictment for misdemeanor ?
MR. CLINTON.—Will there not be some questions of fact for the jury?
THE RECORDER.—There will undoubtedly be questions of fact for the jury, upon the papers that were presented.
MR. CLINTON.—Your honor, then, only had the facts as stated in the indictment, on which to base your decision? If you will grant me a little delay, till I can send for Mr. Beebe, and consult my client, I will go on with the case. MR. WHITING.—I wish to make a suggestion. Mr. Jones, the