The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-01-22

pleasure by the Legislature.
Judgment reeerved
The Cuba Invasion Trials At New Orleans.
From the New Orleans Delta Jan. 8.
FOURTH DAY.
UNITED STATES VS.. JOHN HENDERSON.
At the meeting OF the Court yesterday Mr. Hen.
Previously In order to keep clearly before the mind
Of the Court grounds he had taken against the in
Attorney, he rsospitulsed these positions The in
dictment contains nine counts The first count In
the ut AYERS that he ala begin certain en-
eighth charges in the words did set foot military
expedition to be carried on.n The fourth sixth and
seventh counts charge generally that he did provide
means for certain military expedition to be carried
on" The frh that he did provide meAus,
money, and ammunition; and the ninth that he did
provide arms and ammunition All these counts
refer to the enterprise to be carried on thence
meaning New Orleans, using prospective Language.
not that IL hAd been carried or that II was INTENDED
to be carried
The District Attorney, in his opening, had stated
that he expected to prove that John Henderson pur
chased the steamer Creole and took the title in the
name Of W II. White. When he gets his witness
was fitted out and did proceed hence. He (Mr II
objected to such proof not because 1t not essen
and we'll settled principle Of law, that 1t where
avowed In the indictment that an expedition did pro-
coed to Cuba The objections proper to be raised In the
present attitude Of the case had been by agreement
enlarged to include all his to the proofs
which the District Attorney says intends to make
has stated that he Intends prove that John Hen
deI.on did purchase the Creole To this he should OBJ
Jeet because 1t not sverred that the Creole did
gof on such an expedition and beeAufe there was no
ayeIment OF his supplying and furnishing the Creole
as part Of the expedition He had shown, too, that
under the general averment Of the prosecution
could prove nothing and certainly they could not
der it. prove that John Henderson furnished the Creole
Tor two reasons LIST Because is not set forth that
the Creole was means I'd. Because the term means
does not refer to the furnishing and equppng ships
because that offence is included in the third section OF
the act and canRot be wrapped up in the bundle Of
unme aiming terms which make up this sixth section.
On these several points Mr. Henderson proceeded to
r'ad several authorities. He cited Archbald's Crimi
nal Pleading, PIP. fl, SO, 81 e. So the rules Of
pleading for which he commended He referred to those
extreme illustrations OF the strctness the rules
tanned in the familiar respecting the steal
ing Of cattle that when the stealing of horse 10
charged, that Of mare cannot be proved If mare,
that Of fly cannot be proved IT. COW, that OF q
ted general rule, that change in the terms of the
statute is sufficient he also urged that when those
terms general there must be, also specific ale
cation OF the material circumstances intended to be
proved and that II does not mean that the mere
exact wotcs OF the statute are 10 be copied Pros
psctye word in the statute cannot be transferred
into the indictment, without crrrying with them
that same prospective tense Referring to slave
trade care In IL wheaton, he showed the difference
between the estate against the slave trade and he
neutrality act Of 1878 The former Tor bids the fitting
out vetsel with intent to be employed in the slave
trade, 30 that the crminslity may be incurred
without its actual employ ment tor that purpose The
letter in the sixth section under confederation says
nothing 81 intent, while, on the contrary II exhibits
distinction and contrast in this respect, between
that section aud the third section of the IT,
N .hieh inesptve acts, with intent are expressly
forbidden
Mr. Hender,on then referred to Chief Justice Mar.
shall, application Of the 9th amendment OF the Con-
stitution, on Bnrrs trial Cranch, which entities
person accused to be informed OF the and
OF the accutaton, snording still higher authority
than all the common law rules and decisions In be-
half Of the principle he arguing, which Marshall
declared 70 require that the material circumstances of
the alleged tiIence must be set forth lie Also pre-.
scented the xposition Of the same rule as an elsmen
tary principle in starkes whence; and further its
familiar application In civil peAdings, aortio sppli
euh 10 n WYfr I'M
MIR. Henderson concluded by referring to the indict
meLts In the case OF Smith Ogden and that Of Burr,
which In substance the the present one.
The nrst named was the precedent from which the
others had copied with s defects these defects
the iuries had given verdcts OF scquii tall and doubt
lees the counsel in those had in aocord dance
with the usual practice reserved their objections to
OF judgment, in the event OF adverse verdicts.
The District Attorney r. Hunton, then followed In
support Of the Indictment and of the evidence which
he proposed TO Introduce under IL without follow
ing Mt enderton In the widely extended research ne
bad exhibited, he would establish his positions by
few we'll settled elemental rules which he thought
would Hufcs Tor the purposs lie objected TO this ge
neral discusson Of the sucency Of the indictmentst
m0fefuitGble on motion to quash the indictment
before going TO trial In arrest Of alter
verdict rendered The plea Of not guilty already made
by the dsfsnsant, admission Of the legal
sufciency OF the indictment; and he commented with
teme teIstiy'nsts on Mr. lie ndersons remsrk Of yes
terday that he would drive coach and four ugh
IL cont, ndng that he had not broken crack
Ia It's extensive walls on which he could hang doubt
Mr. unton then went into an AIRY disc ussion
OF tn, nature and objects Of Indictment urging that
the present satisfied all the conditions CURED
IL ret forth all the circumstances necessary to cons
the statute, namely the fact that expedition
begun and set ON foot It's time place military charsc
ter. dssfuaton against foreign State at peace with
the Dit,d states That averment Of the epsc;hc fur
nshing 81 the Creols was necessary; that other
mesns might have been furnished by him. In many
cases would BE- impossible 10 specify the particular
means; and the Indictment to inform the
accused Of The nature aud cause Of the accusation.
Ar. Hunton adduced numerous authorities In sup
port Of his views through which II Is impossible for
Newspaper report 70 follow lie ssxusd thst the 9th
section ed n.t require the corsummaon Of the eKpe
dition % attach crminsty to the beginning pro-
Veing Of means for expedition intended 20 be
ried on etc but that the fsc Of the expedition having
been made could be proved as Of the evidences Of
the Intention The beginning with ths intent cossti
tuted the offence The 80 section Of the statute he
argued applied to an entirely different matter and did
not Affect the proper construction to be put upon the
terms OF the 9th section ifour persons charged
with begin nog though ell might not alike have taken
rart in the hrst inception, yet all alike prnei
ale and alike responsible II this con structon CT tina
statute be not sound then the law at pleasure be
nullfs that every body might take all the steps TO-
wards the oral contamination Of the offences and pro-
claim aloud 10 the governms MT itself al Washington,
and wsitngf for the convenient NONE to dpston the
INTENDED Illegal expedition tending TO involve the
country In war could dc With impuuity and safety
Mr. HUntcn 10 conclusion r,ferred 80 the remarks In
which Mr. Henderson had rebuked and scolded those
citizens VINO without anice investigation Ofthe terms
Of tho law which Chief Justice Marshall declered OBJ
rcure and dtmcOlt OF duplication had yet formed gene
raj opinions on the subject, and contendsd that this
wee right which would always BE- exercised by intel.
ligent Americans and which ought not 20 draw on |
them such language a. Mr. Henderson, had applied TO
them
M Benjamin about 70 follow on the same side
when enc "a the juror Mr. Greenwood asked psrmir.
sion ~ the court 10 70 his ofise business OF i'm
Poriance The Judge submitted the application 10 the
counsel whose mutual consent necessary to au.
thoIise u. Mr. Henderson had no objection but Mr.
brpjamin sUggcscd, that ss he contemplated going
iUy into the Law q the and this would b. the
only occasion On which h. expected 10 DO he pre-
iefted thst all tbs jury should be present. and he
could not tnish In the single hour which was all that
nov remained Of tho day it would be better not TO
begin vi Thursday morning This sugaestioa |
adopted snd "wednesday being the Sh Of January the
court adjourned 70 Thursday at 10 o'clock A. M
Before tho adjournment Mr. Hepdef sos In answer /
to remark Of Mr. Benjamin. denied that he had yet
gene IDLY into the Law OF the &C large he had
only touched slightly on toDe Of the important points
IL -. n 4 Il al