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prosecutor, has no wish to take Carlin unawares in trying the case, though he has been put to great inconvenience. If there can be a stipulation, that if this case is set down for another day, some onė counsel in New-York will be ready to try it; we will consent to let it stand over till that day. Will your honor take it up on Saturday?
[The real motive for this indulgence will appear in my opening to the jury.]
THE RECORDER.—If the case in which Mr. Brady is engaged comes on, it wiil run into the next term, and by a special statute a case not finished one term is continued the next. We could not take up a new case.
Mr. WHITING.—I understand that one of Mr. Brady's witnesses has gone away, and will probably not be back till Saturday. Now, if that be so, there is not much hope of our getting at that case before next term.
THE RECORDER.—Why, yes; if that case comes on next Saturday, we can continue it into next week.
Mr. Clinton.—Would it not be better to take an early day next term, Mr. Whiting? Probably by that time the counsel originally retained by the defendant will be ready.
Mr. WHITING.—It would be better to set the case down for Saturday. The facts are very few, and it can soon be disposed of.
THE RECORDER.—Fix any day you can agree upon.
MR. CLINTON.—I will consent that it shall be set down for Saturday; and if the defendant's counsel is not able to be here, I will go on with the case.
The witnesses were then ordered to be in attendance on Saturday, and the case was postponed till that day.
Saturday, Nov. 24, 1855. While in court I received the following: “ As the medical adviser of Mr. Henry Cleaver, who has long
been troubled with a sore leg, I conceive that it would be extremely imprudent, and a serious injury to him, to leave his room at the present time. Absolute rest is enjoined, and should be strictly observed by him under present circumstances.
“JOHN L. VANDERVOORT, M. D.” Nov 24th.
Mr. Cleaver was a principal witness, he being the person upon whom Carlin served the replevin papers. He had been down to the court six times since the 7th inst., without being subpænaed, to oblige me. The consequence of this imprudence was such an injury to his leg, that he suffered several weeks' confinement to his house. Throughout the whole matter, he had conducted himself like a true gentleman. I shall never forget his kindness to me upon all occasions.
Upon consultation with Mr. Whiting, we concluded to go on with the trial without his evidence.
He, however, had testified under oath before Judge Daly, in the case of Orser, concerning this matter; and I call attention to his evidence, and desire my friends to compare it with the testimony of John Collins, Jr., in the trial of Carlin.
Had Mr. Cleaver been able to testify on the trial, Carlin's counsel would have been obliged to seek some other theory for his defence, than that set up by the testimony of Collins.
COURT OF GENERAL SESSIONS.
BEFORE HIS HONOR, JAMES M. SMITH, RECORDER
[Reported in short-hand, by Hayes, Hincks, Carey & Co., 195 Broadway.]
SATURDAY, Nov. 24, 1855. After the transaction of some routine and other business, which had been set down for the day, the trial of Thomas Carlin was proceeded with.
The jurors were sworn en masse.
The defendant was represented by E. W. Stoughton, Henry L. Clinton, and Robt. W. Andrews, Esqs.
Mr. Whiting appeared on behalf of Mr. Jones, through whom the People prosecuted.
After the Recorder had intimated that the Court was ready to go on with the case
Mr. WHITING rose and said :—This is a case, if your honor please, in which Mr. Jones, the prosecutor, is desirous of making the opening to the jury.
The RECORDER assented to the course thus suggested, and
GENTLEMEN OF THE JURY :
The cause to be presented to you for your verdict, is an indictment found by the Grand Jury against Thomas Carlin, one of the Deputy Sheriffs of this county, for an alleged misdemeanor. It involves a principle, in which you, as well as every member of this community, have a deep interest; namely, whether the law, as it now stands, is sufficient to hold a Deputy Sheriff amenable for his acts, when, in his official capacity, he takes the property of a citizen, and disposes of it according to his own will or pleasure, contrary to law; and whether the people can rely upon the protection of the law, and its administration. If they cannot, I ask, What is to become of their rights, property, and their liberty? If you should decide that the law is not sufficient in this case, then it will be necessary to make application to the Legislature to enact one that will be sufficient to restrain these officials, and hold them accountable when they are guilty of malfeasance in their official acts.
I hope never to see the day, when the people, (in the absence of laws sufficient for their protection) will have to take the responsibility of protecting themselves.
Since this case has found its way into this court, on the 7th inst., I have seen it postponed from day to day, by counsel for the defence, (to the great expense and loss of time of the witnesses, who have attended this court five or six times,) without one word of objection from counsel for the People; except on the last day, viz., on the 21st inst.
I think the whole history of this case will prove to you, that this has been an attempt to defraud a citizen of his property; and that before this indictment was found, and since, this attempt has been persisted in and continued, for the purpose of delaying and defeating the ends of justice.
I will now present to you a short narrative of the facts, which the prosecution are prepared to prove, in connection with this case, as it now stands in this court. The counsel to conduct the trial for the People will then present to you all of the evidence that he deems necessary for the purpose of sustaining this indictment.
On the 11th Nov., 1854, Charles Shute, of New Rochelle, West Chester County, called at my office in this city, and offered to me for sale, a horse, for the sum of $100. I purchased him at that price. He was delivered into my possession on the 22d Nov., at. the stables of Messrs. Cleaver & Mason, Nos. 57 and 59 Mercerstreet. Early on the morning of the 2d Dec.; John Collins, Jr., and William Thompson, (who said he was a Sheriff, but who was a constable, attached to the Marine Court;) came, without any process of law, and took the said horse away, on the plea that he had been stolen ; and Thompson said, “ Judge Beebe was going to send right out to New Rochelle to arrest Charles Shute for theft;" Collins stating that the horse was his property, and that he had been stolen by Shute; that Shute was a thief, &c. I will here mention, that Charles Shute has been a resident of New Rochelle for several years, was at the time of the sale to me, and is now, the owner of his house and lot, and other property, which stand recorded at White Plains, without a dollar of incumbrance on them ; was then, and is now, responsible for his acts and engagements; and that Mr. Shute has never been molested, either civilly or criminally, in this matter, up to this time. Agreeably to the instructions of my counsel, Messrs. Martin & Smiths, I immediately executed papers for “claim and delivery of personal property." I then caused a search to be made in this city, in New Jersey for forty miles, and in West Chester County, from New Rochelle to NewYork, with the properly executed papers for both counties, and for the State of New Jersey, without being able to find the horse. I then employed a person to make further search, who found him in the basement of the stable of Mr. David Jarvis, No. 1000 Broadway, and as the man told me, “ blanketed and hooded up to the eyes.” I went there with a Sheriff, and the proper legal documents; but upon stating to Mr. Jarvis that the horse was my property, he gave him up to me, on my paying him for his keeping for twenty-eight days. It was consequently not necessary to serve any papers on him. This was on the 30th Dec., 1854. I took the