and fourth ribs of him, the said John G. Van Nest, then and there feloniously, wilfully, and of his malice aforethought, and from a premeditated design to effect the death of the said John G. Van Nest, did strike, stab and thrust, giving to the said John G. Van Nest, then and there, with the knife aforesaid, in and upon the breast at the left side of the breast bone, between the third and fourth ribs of him, the said John G. Van Nest, one mortal wound of the breadth of one inch and of the depth of five inches, of which said mortal wound the said John G. Van Nest then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said William Freeman, the said John G. Van Nest, in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, and from a premeditated design to effect the death of the said John G. Van Nest, did kill and murder, against the peace and dignity of the people of the State of New York. LUMAN SHERWOOD, Dist. Att'y.

(A true Bill.)

SAMUEL S. COONLEY, Foreman.

On the presentation of the above, with the other indictments against William Freeman, and on motion of the district attorney, it was ordered by the said court of general sessions that the said indictments be sent to the court of oyer and terminer for trial.

Henry Wyatt and William Freeman both being in jail on charges for capital offences, a commission was issued by the Governor for the holding of a special court of oyer and terminer by the Hon. Bowen Whiting, and the county judges of Cayuga, on the first Monday of June next thereafter, at the court house in Auburn, for the trial of said prisoners.

THE ARRAIGNMENT.

On the first day of June, 1846, the Hon. Bowen Whiting, with the other judges composing said commission, convened at the court house in Auburn, and then and there opened and held a special court of oyer and terminer. After the usual proclamations, the sheriff was directed to bring in William Freeman for arraignment. The prisoner having been brought to the bar, L. Sherwood, Esq., district attorney, proceeded to arraign him upon the several indictments for murder, whereupon the Hon. William H. Seward appeared in court and tendered in behalf of the prisoner a PLEA OF INSANITY, upon which the district attorney took issue.

His honor, the presiding judge, then remarked, that as the statute expressly declared that no insane person can be tried, the issue which had been joined upon the mental condition of the prisoner must be disposed of before any further proceedings could be had on the indictment. How that

issue was to be determined, he was not, without some reflection, prepared to decide. A plea of insanity went to the right of the court to try the prisoner during the continuance of that disability, if it in fact existed. The court, therefore, must adopt such a method for determining that issue as would be satisfactory to the judges composing it. Until he consulted with his brethren, he was unprepared to announce the method to be adopted. As it was a matter resting in the discretion of the court, he would hear the views of counsel, if they desired to make any suggestions.

Mr. Sherwood observed, that in his opinion the court might determine the present sanity of the prisoner, either by a personal inspection and examination, with or without the aid of physicians, or by a jury to be empanelled for that purpose. He was unable to say what method the court would prefer, or which would be the most satisfactory. As he had, from observation of and conversation with the prisoner, satisfied himself that he was not insane, it appeared to him that a similar examination might satisfy the conscience of the court.

Mr. Seward regarded insanity as a fact that should be determined as other questions of fact are required to be, in criminal cases. In that view he suggested a trial of the issue by a jury. It was important to the people as well as the prisoner, that such an investigation be made as shall be entirely satisfactory to the court and to the public. If the prisoner be insane, as the plea alleges, he ought not to be required to answer; if he be sane, he should be tried. Whilst the examination of the district attorney had convinced him that Freeman was sane, his (Mr. Seward's) examination had convinced him that he was insane. Others, with equal advantages for arriving at the truth, corroborated his opinion. If a trial by jury were the right of a sane man, ought it not to be accorded to one who cannot hear you nor make any election in the premises himself?

The court reserved the question for advisement, and ordered the arraignment to be suspended, and the prisoner to be remanded to the county jail.

DECISION OF THE COURT.

On the twenty-fourth day of the same month, the court announced its determination to inform its conscience concerning the insanity of the prisoner, by the verdict of a jury, and thereupon directed the Clerk to draw such jury from the box containing the names of jurors summoned to attend said court, and to empanel the same for the trial of that issue.

Hon. John Van Buren, attorney general, and Luman Sherwood, Esq.,

district attorney, appeared as counsel for the people; Hon. William H. Seward, David Wright, Christopher Morgan, and Samuel Blatchford, Esqrs., took their seats as counsel in behalf of the prisoner.

THE JURORS AND THEIR EXAMINATION.

EZRA STONE was then drawn by the clerk as a juror, and answering, was thereupon challenged for principal cause by the counsel for the prisoner. After being sworn to answer, &c., touching his indifference, &c., he testified as follows: I reside in Cato. Have not formed any opinion concerning the sanity of the prisoner. Have heard the subject spoken of. Have seen him in his cell, but have formed no opinion. Have no impressions on my mind either way.

Question. Have you not formed and expressed a fixed and deliberate opinion that the prisoner at the bar is guilty of murder? Objected to by attorney general, and objection sustained.

Q. Have you not formed and expressed an opinion that the prisoner ought to be hanged? Objected to by attorney general, and objection sustained.

The court overruled the challenge for principal cause, and thereupon the prisoner's counsel challenged the juror for favor. Counsellors Hulbert and Andrus were appointed triors, before whom the juror was further examined as follows: I have heard of the murders in Fleming. Saw an account of them. Mr. Ives, of Weedsport, told me about them. Ives told that the prisoner was a negro, and that his name was Freeman. It was said there were others concerned with him. Heard a man, who saw the bodies, give the particulars of the transaction. Think it likely that an opinion was expressed. It was said that there was talk about Lynching him. There was considerable excitement. I have not had doubts of his guilt; of his having committed the murders. Have said that if he was guilty he ought to be punished. Have said he ought to be brought to trial and to justice. I partook of the excitement. I had supposed him sane until I came here. I have heard it asked whether they would not try to prove him morally insane. Don't know as I thought he ought to have been Lynched. I may have said that it might have been as well if he had been.

Q. by the triors. When you testified that you had no doubt the prisoner committed the murders, did you mean to intimate an opinion that he was capable of committing murders, or merely that he had taken the lives of those persons?

Answer. That he took their lives. I knew nothing of his ability.

Verdict of triors" that they find the juror indifferent upon the issue of insanity."

The prisoner's counsel insisted that the verdict should be whether the juror is indifferent between the people and the prisoner. Whereupon the court remarked that the verdict of the triors was equivalent to that, and thereupon the triors say, that under such instruction, their verdict is that the juror is indifferent.

The said juror was then challenged peremptorily. To this the attorney general objected. The court decided that the prisoner on this issue was not entitled to a peremptory challenge. Ezra Stone was then sworn to try the issue. (1.)

SIMON HAWES was next drawn by the clerk as a juror, and answering, was thereupon challenged for principal cause, and he being sworn, testified as follows: I have seen the prisoner. Have heard the question of his insanity several times spoken of. I saw him in jail this morning. Thompson and Wood, also jurors, were with me. There was a man in the cell with the prisoner doing something. Have made up no mind as to his insanity. Have not much of an impression. Have formed no opinion.

Q. Have you formed and expressed an opinion that the prisoner is guilty of the murders charged against him? Objected to by attorney general, and objection sustained.

The court then overruled the challenge for principal cause, and thereupon the prisoner's counsel challenged the said juror for favor. Same triors as before. The juror being further examined, testified: I have formed an opinion that the prisoner is guilty, if he is the man he is said to be; that he is guilty of the murder of the Van Nest family. If he is the man who killed them, he is guilty, of course. I have formed an opinion from what I have heard and read that he is the man. This has been my opinion since I heard of the affair. My opinion at present is as much of a deliberate opinion as any other that I have formed from reading and hearing. I have read accounts of the murder in the newspapers. I have heard it conversed about often, and have always expressed this opinion. Guess I never expressed the opinion that he ought to be hung. If he is guilty he ought to be hung, and I have formed the opinion that he ought to be hung.

Q. by the court. Have you ever thought about his being insane?

A. Yes, I have thought and said he ought to have a fair trial. I feel indifferent on the question of insanity.

Q. by district attorney. Have you had any means of forming any opinion whether the prisoner is sane or insane?

A. I have not. My mind is open to a fair consideration of the testimony upon that subject. I did not take into consideration his responsibility for his acts, when I said he was guilty of murder.

His honor, the presiding judge, then charged the triors that the question

for them to determine was, whether the juror's mind is in a condition fairly to try this issue of the sanity or insanity of the prisoner; to try whether the prisoner shall be tried on the main issue. He has expressed a belief that the prisoner is guilty of the killing which is charged against him as murder; yet that is not the question now on trial, and we do not see that an opinion on that disqualifies a juror upon this issue. If he has a fixed and deliberate opinion that the prisoner is guilty of the crime charged, he is not disqualified as a juror on this issue, if he has not made up his mind as to the sanity or insanity of the prisoner Evidence of his opinion of the prisoner's guilt could have no influence in deciding upon the indifference of the juror only as it was evidence of his bias against him, and that if the triors believed that such opinion was evidence of bias against the prisoner, they would find the juror not indifferent.

Verdict of jurors-that he was indifferent; the court deciding that no peremptory challenge would be allowed, Simon Hawes was then sworn to try the issue. (2.)

EZRA MOSEMAN was then drawn, but discharged on his own application, for cause shown on oath.

ANDREWS PRESTON was next drawn as a juror, and answering, was thereupon challenged for principal cause, and being sworn, testified: I have formed an opinion that Freeman took the lives of the Van Nest family. Whether it was legally murder or not, I cannot say. If he was of sound mind, I should suppose that it was murder; otherwise, not. I do not know but that his mind is sound. Have seen him in jail and in court, but had no conversation with him. Others had. From what I have seen of him and heard about him, an impression has been made on my mind that he is not insane. I have no prejudice or bias against him, and would be willing to have his insanity tested fairly. I have not had the means of forming a decided opinion on that point.

The court overruled the challenge for principal cause, and the juror was thereupon challenged to the favor. Same triors.

Q. Have you any doubts as to the accountability of the prisoner?

A. I think I should have some reason to doubt his accountability. I suppose him to be a man of very weak intellect, very indeed. I should, however, make a distinction between imbecility of mind and insanity. I heard of the murders; read most and perhaps all that was published on the subject. My mind was not prejudiced by what I read, if I understand the true definition of that word. I understand prejudice to mean the judging before hand, without proper examination. I heard of the attempt to Lynch the prisoner. Don't know but I heard from an eye witness, soon after it occurred. I presume I expressed an opinion upon the subject then, and that was in favor of a strict observance of the law.

The court charged in substance as before, and triors find the juror not indifferent.