of Cayuga, counsellor at law, being duly sworn, saith, that William Freeman, the prisoner at the bar, is a person of a mind so feeble and a knowledge so limited as to be absolutely unable, in the belief of this deponent, to make, with requisite understanding, any deposition or perform any other legal act. That from the most careful personal inspection of the prisoner which this deponent has been able to make, and the best judgment he has been able to form from the testimony upon the preliminary issue in this cause, this deponent believes, without any reservation, that the prisoner at the bar was insane at the time of committing the offences alleged in the indictments, and remains in that condition.

This deponent further says, that it seems to have been judicially established on the preliminary trial in this cause, and this deponent believes, that the natural feeling of indignation excited by the prisoner's inhuman homicides, swelled by other circumstances, rose so high on the arrest of the prisoner, that it was only by the most diligent efforts of the police that he was saved from being the victim of the blind fury of the people. That that popular indignation has by no means so far subsided, in the belief of this deponent, as to leave any ground of hope that at this time a jury of twelve indifferent and unprejudiced persons could be found in this county. That any trial which could now be had, however fairly conducted by the court, would, in the belief of this deponent, be but a hollow form, unless by mere accident some cool, dispassionate persons might find their way into the jury box.

This deponent further saith, that the trial of this cause requires witnesses unpaid, numerous, and some of whom reside at a distance. That so far as this deponent knows, several of the prisoner's witnesses who have been in attendance, have withdrawn under the supposition that, having testified on the preliminary issue, their duties were ended, and without any expectation of being obliged again to attend a court which has exacted a large portion of their time during five weeks; and that A. Sidney Doane, an important and, as this deponent believes, an indispensable witness, could not be procured to attend this court, but could be procured at a future time.

supreme court

This deponent further says, that his client is cast upon his help now, more helpless than ever. That this deponent could not relinquish his defence to any other of the members of the bar who are willing to assume it, without what would seem to be very great danger to the defence. That this deponent's engagements require him to attend the which commences its session this day at Utica. That other professional business, not inconsiderable, has been necessarily neglected by him absolutely for five weeks past, in consequence of his attendance on this court in behalf of prisoners who needed the highest professional effort without being able to render any reward. That this deponent's private affairs of extreme importance are suffering from neglect, and that he can truly say that his health

and strength have been already so severely taxed that he is apprehensive they will be insufficient to sustain him through the fatigue and labors of a more protracted session of this court.

This deponent doth, therefore, for his own sake, for the sake of his imbecile and insane client, and for the sake of public justice and of humanity, most humbly ask and implore that these indictments may be continued until another term of this court. WILLIAM H. SEWARD.

Sworn before me this sixth day of July, 1846.

PHILIP VAN Arsdale,

Clerk of Cayuga County.

MR. VAN BUREN opposed the motion, and insisted that the trial proceed without further delay. It was true that it might disoblige the counsel, but he did not believe, and therefore would not concede, that the excitement raged so high but that an impartial jury might be obtained in this case. Sufficient had been already developed to render it obvious that the trial might be had in a very short period of time, unless the prisoner's counsel saw fit to protract it by a defence of insanity. The public demanded the trial of the prisoner, and he must protest against any postponement.

MR. SEWARD felt constrained to say that the public did not demand the trial of this man until he could be fairly tried. Whilst the blood of Freeman can never atone for the homicides, it can never satisfy public justice nor make amends for the wrong of forcing him to be tried by men who have partaken of the excitement which the Fleming tragedy has occasioned. Let it be remembered that the prisoner is incapable of any act respecting his defence, and is without capacity to name or the ability to obtain witnesses. Motion denied, and decision excepted to.

MR. SEWARD then moved that the indictment be quashed, and interposed a plea that John O'Hara, one of the grand jurors, who found the same, was at the time a brother-in-law of John G. Van Nest. He then read the following affidavit:

CAYUGA OYER AND TERMINER: William Freeman ads. the People.

Cayuga County, ss: Christopher Morgan, of counsel for the defendant, in the indictments above mentioned, says that the said defendant is unable, by reason of mental imbecility, to make a deposition, as this deponent believes. That John O'Hara, one of the grand jurors named in and who found the said indictments, as deponent has been informed and believes, was son-in-law of Mrs. Phebe Wyckoff, brother-in-law of John G. Van Nest, brother-in-law of Mrs. Van Nest, and uncle to George W. Van Nest, all of whom are alleged in the said indictments to have been murdered by the said defendant. CHRISTOPHER MORGAN.

Sworn before me, this sixth day of July, 1846.

PHILIP VAN Arsdale,

Clerk of Cayuga County.

Motion denied, plea overruled, and decision excepted to.

The court then ordered that the prisoner be put upon trial.

MR. SEWARD requested that other counsel might be associated with Mr. Morgan and himself on the defence.

The court appointed David Wright, Esq., as associate counsel, and ordered a jury to be empannelled for the trial.

The prisoner's counsel thereupon interposed the following challenge.

CHALLENGE TO THE ARRAY OF THE PANEL.

CAYUGA OYER AND TERMINER: William Freeman, ads. the People. And now at this day, that is to say, on Monday, the sixth day of July, in the year of our Lord one thousand eight hundred and forty-six, came as well the aforesaid William Freeman, in his proper person, as the People aforesaid, by Luman Sherwood, Esquire, district attorney of the county of Cayuga, and the jurors aforesaid, also come, and hereupon the aforesaid William Freeman challenges the array of the panel, because he says that Richard Searing, of Venice, a juror duly returned by the supervisor, town clerk and assessors of his town, to the clerk of the county of Cayuga, as a suitable person to serve as a juror according to law, and who was duly drawn, empannelled, summoned, and returned, and who appeared at this court as a juror, and answered to his name as such, and the ballot of whose name was put into the jury box to be drawn in drawing a jury for this cause, was, without notice to the said William Freeman, in his absence, irregularly and unlawfully, without application by the said Richard Searing, or by any person in his behalf, or by any person whomsoever, discharged from attendance as a juror, by this court. And that the order of this court, entered in the minutes thereof, for the discharge of the said Richard Searing, and the facts therein recited, are untrue and false, and this he is ready to verify. Wherefore, he prays judgment and that the panel may be quashed, &c.

To which challenge the district attorney pleaded the record of the said court in the following words, to wit:

"It having appeared satisfactorily to this court, that Greenfield Iden and Richard Searing are members of the society or religious denomination of Friends, and whose opinions are such as preclude them from finding a defendant guilty of an offence punishable with death, the court discharge them from further attendance as jurors at this court."

MR. SEWARD said if the district attorney offered that entry as a plea of justification for the court, he must demur to it, as he then did.

The court overruled the demurrer.

MR. WRIGHT then replied to said plea, alleging it to be false in fact, and offered proof, by Richard Searing himself, then in court.

The court refused to receive the replication or to hear evidence in relation to the challenge, but overruled the same and ordered the clerk to proceed to empannel the jury.

Decision excepted to.

THE JURORS AND THEIR EXAMINATION.

WILLIAM ROSS, called and answering, was challenged for principal cause by the prisoner's counsel, examined briefly by the court and set aside.

ABIJAH P. OLMSTED called, challenged by prisoner's counsel, and set aside because he was a juror on the preliminary trial.

HENRY ACKER called, challenged by prisoner's counsel, and set aside on same grounds.

BENJAMIN ATWOOD called, was challenged for principal cause, and being sworn, testified: I have heard some of the testimony, and have seen the prisoner. I consider the prisoner an accountable being. That opinion is fixed and settled. It would require some testimony to remove it.

Question by the court-Have you any opinion concerning the guilt of the prisoner from the evidence heard in court? Answer-No sir. I formed that opinion from what I first heard. It was not strengthened by what I heard in court. I formed my opinion that this man committed the murder before I came here.

Challenge sustained. Excepted to by attorney general.

SHELDON GOODRICH called, was challenged for principal cause by prisoner's counsel, and being sworn, testified: I was one of the jurors on the last jury in this cause, and then came to the conclusion that the prisoner was sane, and so found. I have not changed my opinion concerning his sanity. From all I have seen and heard of him I think him guilty, and responsible for his acts.

Challenge sustained.

JAMES AMMERMAN was next called by the clerk, and being challenged by prisoner's counsel, for principal cause, was sworn and testified: I believe the prisoner or somebody else killed John G. Van Nest. I believe he is the person who killed him. I made up that opinion at first. I was present at the funeral. I made up my opinion on what I heard, that the prisoner is guilty of murder. I have not heard any of the witnesses sworn. I have no doubt from what I have heard and read that the prisoner is the man. I have read the newspaper accounts of the murder. I saw the bodies brought out of church at the funeral. Was here in court after insanity was pleaded, and part of the time during the trial of that plea. I heard a part of Dr. Brigham's, and a part of Dr. Spencer's testimony. I should judge that the prisoner was sane. As a juror I calculate to go according to the witnesses. I

think the prisoner, however, is the man that murdered the family, and that he is sane and ought to be punished for it. That is my fixed opinion and has been ever since I was at church.

CROSS EXAMINED. I never heard about this insanity until I came here to court. I heard that his name was Freeman, and I heard, too, that the jury brought him in sane. I think there is nothing to prevent me from trying this man fairly. I have no doubt I could try him fairly. I have no feeling or bias that will prevent me from trying him fairly.

Challenge overruled, and exception.

The prisoner's counsel then challenged the juror for favor and demanded triors; whereupon the court appointed counsellors John P. Hulbert and Daniel Andrus.

The court read the foregoing testimony, by consent of counsel, after which the juror further testified: I had thought a man could not be crazy who would get knives and kill these folks as he did, or else folks would have known it and have taken care of him. It is said he stole a horse and ran off. I should think a crazy man wouldn't go off, so I think the prisoner sane. I heard it said that they were going to have a jury of doctors to see if he was sane. When I came, he sat here in court. I heard Van Arsdale and Miss Holmes testify. I heard Van Arsdale identify him. It would take as strong evidence as theirs to remove my opinion. I heard all of Van Arsdale's testimony, and that established my opinion that the prisoner was the guilty

man.

CROSS EXAMINED. I know Van Arsdale. He is on our side of the lake frequently. If I was sworn as a juror, I should look at the prisoner myself. Q. Suppose Van Arsdale should swear the other way, would you believe him?

A. I should go according to the witness who should be on the stand at that time. If he should swear it was another man I should go according to evidence.

After counsel had addressed the triors, the court charged them to give patient care to this man's case. None but competent jurors should enter the jury box. Whilst a person having a fixed opinion should be rejected, a man may have an opinion founded on information which will not resist evidence. The triors found the juror not indifferent.

CHARLES ELDRED was next called, and answering, stated that he had conscientious scruples against finding a verdict of guilty where the punishment is death, and for that reason declined to sit.

Q. by the court. Are you a member of any religious society whose rules forbid capital punishment?

A. I am not a member of any religious society; my scruples are of a civil, not of a religious character. I think a juror should uphold the law as it is, yet I am unwilling to participate in the death of any body. It would be my duty, if I sat as a juror, to render a verdict according to evidence. If he