of law you are to receive from the Court. Much has been introduced that has nothing to do with the question that you are to pass upon. Whether Mr. Jones or Mr. Collins was the owner of the horse, or whether it belonged to some third party, is a matter of no earthly moment. The Sheriff by law is protected in the exe cution of a process. If the process upon its face is such a process as the statute authorizes, it is his duty to execute that process, and he is not to investigate or try the question whether the plaintiff or the defendant is the owner of the property. That is a matter which is to be disposed of by the court, and one with which the Sheriff has nothing to do. His duty is simply to obey the process of the Court; and if he willfully neglects to obey that process, then he brings himself within this statute. The question in this case is, therefore, not simply whether the horse was not delivered to the defendant within the three days, or rather whether it went into the possession of Collins, the plaintiff; but whether the conduct of the defendant in this matter was willful on his part. If it was accidental, or beyond his control-if there was nothing willful in the nonperformance of, or neglect to perform his duty-then, as a matter of course, you cannot find him guilty. It is the intent in all criminal cases which is to be punished. A man may take the life of another, and yet, at the same time, be guilty of no crime. It may be accidental: and so with other crimes that may be committed. Unless the intent exists, the party is not to be held responsible.

Then the question for you to arrive at in this case is, What was the intention of Carlin. If you arrive at the fact, from the evidence, that the horse was delivered, before the lapse of three days, into the possession of Mr. Collins, with what intent was that act done? Or, rather, was it willful on the part of Carlin? Was there a neglect of duty on his part which, under the circumstances, was not justifiable? Because ordinary care and prudence must be exercised by a public officer in the discharge of his duty, as well as by a private individual. Then you will take the evidence; and the first testimony we have is that of Mr. Jones. Now, much has been said

in regard to his motives. This, as I have before said, is certainly a very important question, and the course which has been pursued by the complainant in pressing this case, shows that his anxiety has been to have this question settled. I can see nothing, so far as he is concerned, except what is commendable. Well, Mr. Jones states the fact, that after this writ was issued, he met Carlin on Wallstreet, and a conversation ensued in relation to this horse. Something was said by Carlin in regard to the horse being returned, or the suit being discontinued; Mr. Jones objected to that; Carlin also objected to it, and stated that he would not be humbugged, and that the suit should not be discontinued until the horse was returned to the stable from which it had been taken. Now, this is the first of any declaration on the part of Carlin in relation to the horse. The next conversation between Mr. Jones and Carlin was in the Sheriff's office, in which, as I understand the testimony, Mr. Jones says that Carlin admitted that he delivered the horse to Mr. Collins; and that he had done it upon a promise that it should be returned to him when called for. It is also proved, that on the day the writ was executed, Mr. Collins was seen in this city, in possession of the horse. In opposition to that, we have the testimony of Mr. Collins. He states, that so far from the horse being delivered to him, he clandestinely obtained possession of the property; that he took a person there, with a bridle concealed under his coat, for the purpose of taking the horse out of the possession of Carlin; that the attention of Carlin was called in another direction; that the horse was then backed out of the stable, and that he was in the street, and being ridden away before Carlin saw him. So I understood the testimony. There was some doubt expressed as to whether Kruger was trying to get on the horse at the time Carlin came out of the stable, or was actually going off at the time. Collins says that he came out first; that at that time the man was trying to get on the horse; that Carlin came out a short time after, and that when Carlin came out the man was on the horse, and was riding him off. It is claimed upon that testimony, that Carlin has been

guilty of no willful neglect of duty: and if you come to the conclusion that Carlin was guilty of no neglect of duty, and that the horse was taken out of his possession, after he had executed the writ of replevin, under such circumstances that he cannot be held responsible for it criminally, then, of course, you must acquit him. But if, on the contrary, you arrive at the conclusion that Carlin connived at the delivery of the horse to Collins, and did not make use of ordinary care and prudence to prevent it, then it amounts to what the law would call a "willful neglect of duty" on the part of a public officer.

I have told you, gentlemen, what the law is, and you are to receive the law as laid down by the Court. It is simply a question as to whether the defendant made this delivery before the expiration of the three days, or whether the property was taken out of his possession-he using due care and caution in the discharge of his duty as a public officer. If you come to the conclusion that he was not exercising that care and caution which he ought to have exercised in the discharge of the duties of his office, then, I say to you, that it is the opinion of the Court that he has been guilty of that kind of willful neglect of duty which the statute was made for the purpose of punishing. If you have any doubts about that, you are to give the party charged the benefit of those doubts. In that respect, the same rule applies to this, that would apply to any case of the gravest character that could come before you.

I do not feel disposed to go over the testimony. The counsel on both sides have very fully commented on it. You will consider it under the rules I have laid down, and will find a verdict as your judgments shall dictate.

I have been requested by the counsel for the defendant, to charge you several propositions. The first is, that "a Deputy Sheriff is not a public officer within the meaning of the statute." That I charge against the counsel for the defendant. The next is, that "in any event there can be no conviction upon this indictment, if there is no proof of the payment, or tender of payment, to the

Deputy Sheriff-the defendant-and if his lawful fees for taking the property were not paid." Upon that point, I state that this indictment is not for not delivering the property to Mr. Jones, but for delivering it to Mr. Collins.

MR. CLINTON.-One count is for not delivering it to Mr. Jones. THE RECORDER.-Well, upon that point I charge the proposition as against you. The third point is, that "it is not sufficient to sustain the indictment, if there be an omission of duty. The neglect of one to perform his duty must be willful in order to make it criminal in any point of view." Upon that point, gentlemen, I have charged you fully.

The fourth point is, "if the proof does not establish that the defendant willfully neglected to return the property to Jones, in any view there can be no conviction." That point is necessarily embraced in the other. The case is with you.

The jury retired, and after an absence of nearly half an hour, returned with a verdict of "GUILTY, but recommended to the mercy of the Court."

As I was leaving the court-room, one of the jurors (whom I have not the pleasure of knowing) told me that eleven of them wished to render a verdict of " Guilty" without leaving their seats. I imagined they agreed to recommend Carlin to mercy, to satisfy the remaining juror. The trial had been on from 11 A. M., till halfpast 5 P. M., and I suppose the jurors were pretty hungry; I know I was. As to "poor Carlin's " appetite, I can't say.

Carlin having been convicted on the last day of the November term, the next thing for me to do, was to see that the verdict was not destined to have a Rip Van Winkle sleep. On the first Monday in December, I passed the morning in the Court of Sessions,

Judge Beebe and

to see if anything was going on in this matter. Mr. Clinton also passed the whole morning there, but made no motion. The ex-Judge had a private conversation with his honor

the Recorder, but the court adjourned without any motion being made.

On Saturday, the 8th December, I was on hand again-that being "motion and sentence day," &c. At one of the intervals between the sentencing and discharging of poor convicts, the following took place, between the Assistant District Attorney, Mr. Sedgwick, and myself:

JONES.-Will you please inform me, sir, if it is the intention of the District Attorney to move for the sentence of Thomas Carlin this term?

SEDGWICK.-No, sir, it is not.

JONES.-Why not?

SEDGWICK.-There is a bill of exceptions being filed.

JONES.-Upon what ground?

SEDGWICK.-Upon the law and the evidence.

JONES.-Is Carlin still under his own recognizance?
SEDGWICK.-Yes, sir.

JONES.-If the case is carried to the Supreme Court, is it the intention of the District Attorney to compel Carlin to give other security?

SEDGWICK.-No, sir. Mr. Jones, you have got all you want. You have got a verdict.

JONES.-I think I know what I want. I think I know my own business.

On Monday morning, the 10th inst., I stationed myself at the street door of the Recorder's office, and waited his arrival. Another gentleman was also waiting for him. The Recorder at last came along, smiling, when both of us in waiting greeted him with a "good morning." The Recorder, without stopping, wended his way towards his office, up stairs. I called to him, and asked him if I could speak to him a moment? He said, "Yes; walk up." I accordingly did so, and although the gentleman who was waiting at the lower door with me, knew that I was there before him, he did not hesitate in securing his honor's attention at once. With my natural