The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1850-02-13
The mutilated record Case.

81 k.
The MutiIated Record Case.
The First District Court room crowded yesterday to
listen the trial of the prosecution " State Us. w. S.
Upton R. NJ Garter, and Amos Hough,' for defaeng
record Messrs Grymes, Hunt, Benjamin. and Cohen,
peared for Mr. Carter Mr. Gailhe for Mr.. Upton, and
Messrs Field and Piles for DR.. Hough The Attorney Cen
era alone represented the State, and VIXEN he stood against
this formidable array, he like poor at iroic "
Mr.. Cohen, before the Jury empanneed, moved for
separate trials for each Ofthe tayeer, the ground that
there charge of conspiracy and that the charged
the eacing ola record could only have been committed by
single individual That by allowing severance each would
be allowed the benefit OF the testimony OF the Others But
the motion was oyeruled.
The Jury composed of the following gentlemen j. W.
Reeds. Meyer. s. H. Shepherd,A Lanuss j. Budd $. S.
Ref, w. r. Braselman, F. Arroyo, IL. LegendIe, IL.
Perry, A. ]. Arthur, P. Ward. The question came up
who should challenge first the State the The
Court decided that the State entitled to the last challenge
and the point was reserved.
The Attorney General read the indictment and the statute
in these words;
embezze any record enromen matter instrument
corded registry thereof with intent to detaud, shall
conviction thereof pay fine not exceeding thousand
dollars, and be imprisoned at hard labor, for
any office within this teuitory.'
The Indictment aven substantially that record of the First
District Court was altered by the defendants to deraud one
j. b. Chandler Mr.. Elmore said it necessary for the
State prove intent and the deraud Chandler
the indictment could be sustained The intent defraud
must accompany the cancellation r. Ii. Mar retained
attorney by j. b. Chandler to investigate the affairs OF
the succession of his mother Mrs Bannster He found the
alleged to be altered Mr. Benjamin objected any
evidence in regard any paper already In evidence Mr.
ElnoIe then offered the record.
Mr.. Benjamin objected it, because the allegations did not
correspond with the probaq. The defaced record attempted
to be copied and certain blanks are left in the copy There
is no charge that any words are cut out or in de-
stroyed The Indictment purpprts give copy
the mqtated record but there no mutiaton apparent;
only shows some blanks. Now we object the introduction
OF record which show the
lions of that record The charge that altered and de.
ambezzng the record. He then showed that the copy
embodied in the Indictment did not correspond with The
record The indictment charges the OF the opposition
to the medical and udiea eharge The record shows the
position the urdea can We show the record contains
the opposition TO the jurdca claim There copy Of the
are omitted IN the e9Py The record contains On the back
ne endorSemeeni Diseonunned sept ~ lsH This is
not copied The Indictment charges the alteration TO have
Mr. Emore thong the parties meant to stand their trial on
the merits but this purely technical defence He wished
to the law which sustained the objection There was
necessity give copy record Hecited Archbod 2ii
Mr. Grymes replied-riere description in the ndic
et OF the offence, that the might make hei
Indictment aad The record The charge is ior eacng he re-
cord; An r. The endorsement must be made on the in
dictment forms part Of L. and completes it. The endorse
ment is - The State u.s. Upton ct al Fordeacing record
embodied in the indictment were detacemegt that thesS
blanks wereeyer filed up, and afterwards cancelled He quo
ted the authority OF the Attorney General which was only The
conclusion and not the narrative part OF the Indictment; bu
he read the general rule from page 49,
The Court decided that the Discrepancy between the ndet
ent and the record was in matters OF substance and sustained
The Attorney General moved to uoe prosequi bu
Mr.. Grynes cited 20 Pick 49, which concusivey show
that after jury empanneed, the prosecution dis
continue; the trayerser is entitled to verdict
The Attorney General quoted Wliarons Am Law in snip
port OF his motion that the Attorney General may no
Randel Hunt said that these dgess of law made by neon
petent persons were most dangerous supports His experience
that the Attorney General may a0e pr0segai al
time, but with the consent of the defendants and tie
aN
law. Mr. Hunt said that question common law lie
amman oS The SnHrsUoe onrt ot % w E
add the decision Of Chief Justice Marshan.
and he felt much embarrassed There impressions made
on the mind IN early te which were stronger than those made
at later period One Of those which had been hi
mind IN early HE was that party once put before jury had
made on statute but on the common law He overrued thu
mS 9i1 t,,o. g.. NJ. C,.... ,,,l5.,, -,
ntroducton Of the record MI Grahe who appeared for Mr.
Upon had not objected to the record and Mr. Piles. III
Ps 81 D Hoqgh 2G D declared his Willingness to have tn
MIR Elmore offered te record He read the opposition Mr.
Benjamin required he should offer also the endorsement of tn
dismissal The Attorney General objected, but the Cour
Mr.. MARI was now recalled lie said it was about yea
since he discovered the CANCELLATIONS Henever the recort
Mrs Rebecea BannisteT, and epued be such He neve
knew Mrs. Banner. alleged this record had been mutatec
exhibited the record, for the first time Judge Mellery
last November, in the progress OF that suit No questions BY
Mr. SERE, the Deputy Clerk of the Court said the first
the papers 1t looked then does now did not inform
the Attorney General oft do remember its state when
erased word The endorsement OF dismissal Of Sept g. 1s7
in my handwriting He produced the which contained
the acceptance OF service By Carter This petition filed
and ett with the papers Of he record He produced the min
the opposition and Of Nov 49, the entry Of the trial Of the
opposition and the reinstatement of the opposition of Merle,
in common withnumerous crsitors. No crossqueson
The Attorney General offered the Judgment recognizing
B. Chandler as heir Of Mrs. Bannister
Il l. III. IL Il.
November ), l847, when the oppotons tried. Several
gentlemen appeared and ali the parties interested were repre-
ehed the outline Of Judgment, which sustained by Tho
evidence shorty after my attention was called e tie large
duncan came INTO Court snd sad he had reasons TO believe
This was objected TO, and ruled ou ordered the Cert
not 10 the until further orders. But while
the Second Dist Court Tbe next heard Of vas when Mr.
Mar argued Ihe exceptions to he suit hehad brought agqns
met Me- Carter on the following Monday and informed hin
opposition but he had explained to Mr. Upton that DR.
Hough had been her physician for many years, rem
large sums TO Mrs Bannster and was fully entitled 10 th
sums charged That ior his own fee, it Just and he
and that Upton Immediately cut out the charge The Crl
Upton informed that he had it out before il was fled
adylSad nm 70 produce some proof or at least exhibit hi
the Clerk said 1t cannot be because there copy OF th
In the eenyersaton with Mr. Carter be referred me to Mr.
Upton. That gentleman himself spoke the subject
There nothing remarkable in his did not tiul
OF any crime at the time said was imprudent conduct
cut record but if done before filing, criminal
The Attorney General offered the abeau of Mrs Bapnis
ers succession Sept 2h 1876 order of homoogauol
of account far opposed and the moruary proceed
| ngs in that succession
MIR. Cooks an attorney at law In June, 1913, wa
requested TO examine the papers and ascertain whether
sales had conferred good tide. Aud about month after
employed to collect debt due by the succession Icout
not md from the record that my client, MIR. MeMaer ap
peared on the record called on Mr. Carter, who refused Il
give any satisfaction Mr. Wilcox went with me 10 Mr.
Carter and requested HIM to aid in the collection of th
debt. IL was oneio fourth OF the Merle, Beye Co. iudg
ment, assigned by II. Nj. Carter to McMasten.
Here the witness produced the assignments
"Oneio fourth part of the judgment of Merle Beyle & Co
X. Bannser belongs to r. NJ Carter. w S. UPTON
hereby assign, for valuable consideration, to - Me
Masters my interest in the fourth part Of the Judgment d
Merle, Beye y Co. r.. Bannister's succession
| Nov. 20, ls47. r. NJ. CARTER"
Ma Cook resumed.-Mr Carter asked me not to file III,
transfer among the papers, would tend To confuse the pa
Merle Beye Co. might lose the debt lie said thert
was no danger, and he went over and Upton. men
edd not wish He then went tell witness how Car
ter obtained the claim.
This objected to by Mr. Benjamin who said that if the
State wanted the testimony of either of the accused the AT
orney General could have procured the evidence by sever
of the trial This not an indictment for conspiracy t.
detraud, but is charge OF deacng record As to Carte
and Hough there is not the slightest proof and Mr. Upton
frankly that he did it without any criminal INTENT and a
! a time when it was entirely innocent
Mr., Hunt argued on the same side
The Attorney General offered the testimony to prove IN,
fraud and cited authority from Roscoe that be
ing Proved the declarations OF any of the accused are evidence
against all He wanted show what consideration Carte
paid for the fourth interest.
Mr. Hun! replied 70 the authority Of the Attorney General