The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-05-19


McCALLA, in reply. = The laws in force in
this District have undergone no change in refer
ence to such questions that before the court. No
such statute exists here as that OF Geo. T. 81,
$40, (citsd in Russ Crimes. ia, 9Th 1m cd pro-
viding that certain defects shall not yitiate in
dictment. part Of the District Attorneys argu-
ment 10 to the effect that il is competent for the
| Supreme Court to repeal an act OF Congress-. The
| act declares the offence which il prohibits to be
felony; and, according to him, the Supreme Court
| say il is not felony The distinction which he
sets up, founded on the supposi,ion that Congross
used the term .'felony," IN reference to the pun
istment only, ia erroneous. In some cases, a con-
vction OF felony carries with forfeiture Of life;
| and II surely cannot be contcnded that Congress
contemplated any such consequence when they en-
| acted this statute. The fact that the statute pro-
vides penitentiary punishment for the offence,
| shows that in using the term "felony," they were
describing the crime, not the punishnent II Con
gress meant it as punishment, why did they go on
to atflx the punishment Why did they not ex-
pressly place the offence in the class of INSIDE
| meanorss The first part of 81 of the act of 1895
shows that Congress considered arragnment to be
| necessary. The counsel here cited Russ Cr, rs,
rs defining felony; enforced the argument ofhis
associate on the passage cited from Chilly Grim.
Lao, AIS, 4l9, and contended that the true con-
struction of the opinion of the Supreme Court in
Staats's is, that the trial OF an indictment
the act Of 1929 all the incidents Of trial for
! felony must be observed.
| KEY desired again to call the attention of the
Court TO Hale T.. o., 26 and to the omission Of the
record to state that the traverser personally
present. This is defect not to be cured by adms-
sions ofcounsel They go for nothing. II the offence
| il felony, the judgment must be arrested, be-
cause there was no arraignment; ii the offence 10
only misdemeanor, the judgment must be arrested,
! because the sentence of the court below adjudgcs
| the party to be guilty of felony.
The DrsTRIcT ATToRNEY.-There is no such d.
emma. The sentenceisi in the words OF the law, and
ia in accordance with the construction given to the
| law by the Supreme Court, who decide that the
term I" felony" relates to the punishment only. and
| End point-Dupicity.- indictment charges
that the traverser fraudulently, &C., " did trans
init to, and cause and procure to be transmitted to-
Philip Clayton, the said Philip Clayton then and
| there being Second Auditor of the Treasury Of the
said United States, and an officer ofthe Government
ofthe said United Staes and did then and there pre-
sentat and cause and to be presented at the
office Of the said Philip Clayton Second Auditor
aforesaid, the said Office then md there being an
office of the Government of the said United States
certain false paper writings &c" In the reasons
filed in support of the motion in arrest of Judgment
was objected that separate and distinct offences
arc here charged in one count and that the indict-
ment, which consisted OF that count only,
therefore bad for duplicity. The prisoners
sci submitted, the writ of error this point with
out argument. The DIsTRIcT ATTORNEY urged
the court to consider and determine it, it mig ht
otherwise be raised in other pending cases 'Whe
a statute, as has already been observed, makes two
/ or more distinct acts connected with the same
transaction indictable, each one OF which may be
considered as representing stage in the same
offence, 1t has IN many cases been ruled they
may be coupled in one count" (Iphart. Or.
La,o, $50 The pepitentiary law of this Dis
trict (aot of I'd March, 1881, " for the punish
ment of crimes in the District of Columbia 6 H.
TO- Stat, H., 449,) Furnishes the false MAJ king, &c ,
or causing or procuring to falsely made, &c, or
willingly aiding or assisting in falsely making,
&C., any paper writing. Sc, sc. Each of these
several acts may be of itself the subject of in
| dctmcnt; and yet the uniform and unqucstioned
practice has been to include them all in count.
This mode of charging was held good in Rasnick's
case pirg. Ca 1856; the indictment in which case
was founded statute similar in phraseology
to our act of Congress. See also Stocksr's Gaze, /
Sdk., 342. So in Angels case, which in
dictment under statute Furnishing the shooting
Of another with intention to main, disfgure, dis
able, or kill" the prisoner was charged in one
count with shooting, &c, with intention main,
| dsfgure, disable, and kill" and the indictment
was held to be good q Yng ca ,23l) Sowhere
the statute punished burning causing 10 be
burned, and the Indictment charged. in one count,
burning and causing to be burned, the indictment
was sustained prices case, 8 HAST 203) An
indictment for libel, charging in one count that
! the defendant did write and publish, and cause
and procure to be written and published, is good.
{ (41rchbod'S Grim. Pi, 59S.) Yet either the pub
/ lishing, or the causing TO be published would be
by itself indictable. And so, too, would be the
writing merely, with intent to defame, according
| to the opinions Of Ienterden e. j., and Hoiroyd, j.
in Burdett's case, b. and Aid., 95. Il Rus. G.,
2iS) In Rogers case q Burr, 2073) the indict
/ ment charged, in one count, that the defendant
! ''pulled down and demolished" and no objection
was taken, though the was on other grounds
closely contested. Sfaatss case decisive 10 the
other point, lie also authority this point In that
( case, the indictment contained two counts, one of
which charged that the defendant "did cause and
procure 10 be trdnsmitied 10 the Commissioner of
Pensions Of the said United States Of America aud
10 be proestsd at the office OF the said Commssioner
n certain writing. &c - and "did transmit, and
did cause and procure 10 be transmitted, SC" The
second count charged that the defendant 'did
cause and procure TO be transmitted and pveseHted
&c" 6 Hon., Az Yet in Staats's case, which
SO keeny and claborstely contested, that the pris
oncr's counsel took position which the Supreme
Court said sat best is here but the mcrest tcchni-
cality;" no objection on the ground Of dupcity
made.
MoRsELL J. delivered the opinion Of the court,
affirming on both grounds the judgment Of the
criminal court.
THURSDAY, May 10.