The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-10-22
Brooklyn City Court.


CHARGE AGAINST SAMUEL DRURY SENIOR, FOR TIE
POSSESSION OF COUNTERPART MONEY.
BEFORE Judge Green wood and Aldermen Wand Ike an
Taylor.
Ocr Fl The District Attorney OF the county of
Kings, General Duryes) the Assistant District Attor-
ney, Mr. Moore, and MI Waripg, conducted the pro-
secution.
Mr.. Horace =. Clark ex Judge Dykeman, and ano-
Their counsel defended MIR. Drury.
There was some little delay in conssqu ehes of the
arrival of the District Attorney, and of the
counsel for the accused.
On their arrival Mr. Clark said he INTENDED to move
70 nave tAe VT prury qusshed ana
as the time to do 30 was before the commencement OF
the trial, he demanded to see the original indctmeut
II was accordingly handed to hiu ana having read it.
Mr.. Clark then said plea OF not guilty had been
entered to this charge; and perhaps technically the
plea should be withdraw in order that motion to
quasb may be heard Tie scti,n TO the indictment
is that the forged instrument Is not set forth Ia words
and figures This rule is a very great antq uity
and the principle upon which the rule is founded, Is
that the court that the nsrumen one upon
which the charge OF forgery be predicated Cies
Second Rusrell on crimes, llso; I'd East Pleas OF the
Clark Is also in pont. All these cases decide that
the instrument alleged to be forged should be set out
in words and figures; but in were the forged in
struDsnt Is Loot, has been destroyed or Is In the
possession OF the accused the rule yields Ia some cases
persons have been known when arrested to swallow
the counterfeit bills, and were 1t necessary In such
cases to set forth the instrument, the ends OF public
justice might fail; these form the exception;
In such 1t is essential that the indictment should
alege the loss destruction the possession of the
instrument by the defendant as the ex ,use tor the
want Of more particular description. Counsel here
cited the of the people against Bsseey 10 Wen
dali page 90 1t H here laid down that II the note be
lost 10 sufficient to set forth tbs loss aud TO describe
the instrument generally The ndicmen In the pre-
sent does not alsge the loss ths destruction, or
that it is in the Possession of the accused. Where
the instrument Is lost, destroyed, in the
possession OF tho defendant, IL must be set forth
in the indictment; if in addition TO the forgery,
struction or possession Of the instrument t should
be alleged in the indictment, otherwise it Is not
30 be supposed that he could be prepared to refute
these charges [Cites the Of The People Kings
ley End Cowsn 522 In fact, said Mr.. Clark, you
not turn to any elementary book where you do not
find these principles asserted. Whether the omission
OF this in the in dictnsnt clerical
or an intended omission the part OF the District At
torney, that gentleman WILL perhaps, himself explain.
mept is not to be produced.
District Attorney There is no doubt OF that.
Mr.. Clark-I!the indictment in this case contained
an averment that the forged instrument was In the
possession of defendant he might perhaps answer
that the people concerned In getting up this prosecu
ton had the possession Of the INSTRUMENT.
District Attorney Do you mean to say that the
people Of the State of New York in possession OF it,
Mr.. Clark--No but the characters who have been
principally concerned in getting up the prosecution.
N M sne ssss Of Ths rsGpis VS. sasy ch a
nent may be sustained II it set forth the loss OF the in
sument alleged to be forged as the excuse for the
want Of q more particular descripton.n
Judge-Hou was that question raised
Mr.. Clsrk-It Uasnot on motion "a arrest; it came
up bill OF exceptions; the quest may bs raised
on a motion TO quash on a motion g.. arrest, or on 9
bill Of exceptions new in dicment OF course can be
framed II the learned prosecutor thinks ct to subject
this county to the expense of second indiotmen and
trial, under the peculiar circumstances Of the case
but they counsel for the defence were prepared to
The Judge-Let me make a suggestion to you,
whether this objection should not have been raised
demurrer.
Nr. Clark think 1t Is doubtful If the DIGESTION
would hold coed demurrer besidss 1t is dangerous
TO demur to an indictment, because the court may
permit you to plead over Demurrers not favored;
the point clearly arises oti1a to quash II this