Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1829-06-02


Of the prosecutor; he should have used due dill
gence, and not have kept the accused incarceratsd
until II should suit the government to abandon the
prosecution But. independent Of this, would call
the attention OF the court to the facts.
Mr.. SWAMI. District attorney. have never
in the whole course OF my practice, known soIi-
tary instance Of a motion to quash . presentment.
which is always considered still before the grand
jury until an Indictment is framed in such man.
ner as the circumstances will authorize. When
that Is done, then win be the time for such a mo-
ton as the present. but there II no such practice
as is now sought to be introduced, nor will the
court take up such at the close Of the day,
just as we are about to adjourn.
Mr. COKE. The grand jury has acted on this
case fully, with the exception OF the testimony of
one alleged witness. who, understand, is out Of
the jurisdiction of this court: If the United States
had used even ordinary diligence. he could have
been had. With regard to the bringing or fling
an indictment, that cannot alter the nature Of the
supposed offence, nor in any-wise vary the impu-
tations, for the presentment itself must be the
guide, and ought 10 exhibit on its face, the facts
beyond which the Indictment cannot possibly 60,
and ii the presentment is insufficient, any other
proceeding growing out Of that must be equally
Alter the lapse Of two weeks. and the defendant IL
in confinement, I hold il to be the duty Of the
prosecutor. under the act Of Assembly, to have
framed an indictment. Itappears to be the most IT,
regular course 10 be sending witness after wit
testimony by degrees, without any definite course
or charges il is, indeed, extraordinary, both in the
manner and delay. But presentment, by way Of
Keeping up the intention OF an indictment has been
framed, which, in my professional capacity, am
obliged to say, includes indictAbie offence what
ever, and feel particularly Interested in having
this motion heard. before public prejudice. unwar
rantably excited, gives an undue coloring to this
charge. Ii Is not merely in the verge of this
court that this matter is discussed, but the pub
liz go
with the insinuatons Of forgery and fraud; an
attempt to lead public opinion, and prejudice
the accused. II is, therefore proper. that il
should be brought to close before the individual
is involved, and that your honors should insist that
the United States shall bring forward the charge.
If can rightly understand this paper, there is
nothing in II which the law recognizes a GRIM
inal offence. In all pretences of forgery, refer
ence must be had either TO the making or the
using oil false papers, but here there is no such
language, neither directly nor in the alternative;
every document referred to as the foundation OF
the fraud is described as genuine. The accusation
is what Nor that he forged, but that he used
genuine paper issuing from one department Of
the government to another! There is no charge
of having even fraudulen,ly deceived. Whence
came the requisition for this money named in the
presentment Not by forged warrant, but by
the defendants own draft, and was again genuine.
Let the District Attorney show me the statute
which makes the matters here set forth indictabe
there is no such law.
Judge THRusroy. bit not amisdsmranor at
common laws
| MIR. CozE- Eo-I should like 10 see the an
thority.
Jude THRUsToN. Ish not peculation
Mr.. COKE. What is pecala;ion'
Judge THRUsToN. The appropriation Of pub
lie money to his own use.
Mr.. COKE. That is a matter not charged. We
can be governed only by what appears before the
court, and IL any evidence OF peculation or other
offence had been before the grand jury, it was
their duty to have taken notice Of it, and made
that subject OF special charge: they have not
done it, and we are to presume there was no such
testimony.
Judge THRusroN. Admitting your argumen,
to be true, mean in point Of law, ncn cOnstdt
that it has any reference to this; how do we know
that the presentment is not upon some other mat
ter still before the grand jury, We should have
to look at the original warrant and affidavit, and
that warrant may not explain this presentment
Mr.. COKE. i would venture to say, may il
please your honor that the merest tyro OF the le-
gal profession would be able to say, upon exami-
nation, that the warrant was issued only upon
hearsay: bis honor, Judge Cranch, saw the atfda-
Wit, and knows how vaguely it was made.
Judge CRANcH. Twas only to see the amount
Of bail re9uired--I did not examine it.
hlr. CAKE. will read the first part of the
affidavit to show how indefinite il is.
Mr.. KEY. Assistant Counsel for US. II the
gentleman goes upon the motion to quash the pre-
sentiment, has he right to shift and now examine
and discuss the affidavit and the warrant! IL he
does intend to pursue the latter course, the true
way is 10 apply for habeas corpus, and give pro-
per notice to the District Attorney.
! Judge THRUsToE to Mr.. COKE. / would
merely explain, that when spoke of peculaton,
my observations were founded upon the belief
that, when the prisoner was brought up, the war
rant contained sufficient evidence Of charge in
legal form, to induce the holding 10 bail or the
IN bel I 4, IA
not intend to speak in relation to any fact agains.
the prisoner.
Judge MoRsEL. II is unusual for the Court 10
act on motion to quash, until the Indictment is
drawn 1t seems premature, for the matter is con-
sidered before the Grand Jury, until the indict.
ment is known.
Mr.. COKE. All the witnesses have been before
the Grand Jury; and this is the result at which
they arrived.
Judge THRUsroN TO Mr.. COKE. When spake
OF peculaton, did not mean that Doctor Watkin:
was guilty of peculaon butte say that peculatior
may DO committed by public agent, upon mo
ney III his hands as such, as we'll as lift were In
the public treasury.
MIR. COKE. There is no such thing known to
the common law.
| THRUsToN. 1t is by the civil law very high
| crime.
Mr.. CoxE. The question is whether i, is ar
indictabe offence, not what constitutes pscula,ion
for that is mere matter of definition.
hAF. JONES, ior the prisoner This is motion
to quash a presentment which is in the nature Of
an indictment. Now agree that loose practice
has arisen from the blending of miscellaneous bu
siness, and that trusts are delayed from sending
witnesses out at different times until an indicmen,
10 made but when there is a presentment, it i.
recognized as an articleof special pleading, and
the District Attorney has his option to produce Ell
Their that or an indictment, precisely as if under
rule for declaration; but when II IL once drawn
and placed among the proceedings Of the Court,
the U. s. are then supposed to have made Their
election. Juries are often sworn upon present
nents--the trial proceeds-and the defendant dis
charged or convicted, without any suggestion
! H,hatPvpr