The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-03-24
THE COMMO,S COUNCIL.
~~~~s>s a Qsaash q Ie Indictment I'm the Case
OF p fdornan Bard.

HeHore H0ndJsdge BeeDe "a Aluerneu Ooineh
and Hsaann.
M..rp 29-The court room this morning was /
vgvded to hear the decision of the learned Judge in
AZ case. At IL o'clock he entered the Court and
vseIiyered his Judgment as follows =
rbi. matter arises on motion 10 quash the ihdict
mani for informaty and the Court is relieved from all
.Ssrrassm emit upon the subject of whether the mat
~ mn ia the indictment Is an offence at law, by the
eupk Of the learned counsel VINO argued the
,,on Tor the defendant-that the indictment suf
s;a in form the offence charged would be ground for
ldictnent common law The CourS Is also renewed
from al consideration as to whether the matter charged
= an offence under statutes by the statement of the
District Attorney that there is no law upon our statute
books which constitutes the offence charged as crime,
and that if criminal at all il must be at common law.
Tbs question therefore, resolves itself wholly into
he consideration whittier the indictment is sufficient
IN form TO put the defendant upon his trial. |
vhether a court will quash indictment upon it. is a
sestion hereby Of discreona question certainly to be
eusreised within legal rules but not within the same
rue would govern the court IN ITS decision upon De
rnurrer upon motion IN arrest oil Judgment aIter
ve~dict and here take occasion TO repeat what
Lid upon the argument-that regret that II the suf
clancy Of indictment to be passed upon that 1t
shsud not have before the court on demurrer;
and prepared that had the question come
M m that shape the conclusion at which have arrived
- ud have the The familiar rule seems to be
fst the court viii quash ndict ment upon motion
except in q very clear case and the English courts
have carried the rule far to refuse to quash in
,al easses of cases and among Others cases similar to
the sne under consideration q ed Wharton 1874 and
the there cited Acting upon this familiar rule
Tie Indictment clearly bad that the court will not put
taken the indictment is that the indictment describes
re defendant Alderman of the city of New York.
and under color of Office committing the offence
n question, and that, inasmuch he includes within
himself three fold powers to witegislative executive
and iudicAthe indictment should state in which capa
sity he acting while committing the offence ms
objection would have more weight II IT required &C
ten in either capacity other than wckeoy and frau
Sanlenty extorting money as a fee compensation in
violation Of his duty to constitute the offence IN either
oapacty il would be crime for him corrupty to extort
money more definitely described would seem be
ssary but further answer TO the objection would be
that when acting as judge he is so called when, as
he is called and equally when acting in
his legislative capacity Alderman; but to give the
strongest expression against the form the description of
the Court could feel itself justified in giving 1t is not
question from doubt and the Court therefore
quash the indictment that point The next point
ruised by the defendant is that the act which the de-
fndant perform not stated with sufficient clear
able the defendant to propose Understandings
esv hi, defence If this be so the Indictment should most
certainly be quashed, for citizen, however humble,
should be put upon his trial unless tie Indictment
framed that he can clearly understand what be is
charged with. The indictment reats, yet the said
NJ Bard not regarding his said duty on the day
and year aforesaid fraudulenty and mahcousy and IN
violation of his said duty aforesaid and under color of
his said Office extored and received and took OF and
from Thomas P. Stanton, the amount and sum Of
$500 fee and consideration for the performance of
certain in his said capac Alderman. connected
with the leasing of a.cerain pier at the foot Of Wall
sss etY and county Of New York Whereby the said
James NJ Bard wlfuly and corruptly violated his duty
such Alderman, and guilty OF fraud in his said Of
nee.n Now, what is the offence charged by the in
actmentY II 1t be the performance OF certain act IN re-
gard to said pier then am Of the opinion that the in
dictment is not sufficiently explicit; but that
certain act is incident, and not the
principal offence, then that defect may not exist Did
The defendant do act in regard TO the ing OF said
pier. which Lot legal and correct? think such
charge is made by the indictment but being an Alder
Of the city OF New ork and entitled to no fee
consideration for act ia regard to LEASING OF said pier
he wckedy maliciously, by color of his said Office
eeived five hundred dollars whereby he guilty of
fraud and corruption in Office Then the offence not
what he to do but it corruptly receiving five
hundred dollars from Thomas p stanton by color Of his
ais
received from whom he received it, and by what color
what he was 10 DO then the certain act Is the mere
incident the offence and such specific detail is
eeseary. Perhaps airer test be had o. its suh
cheney than comparing it with well established prece-
dent analogous case, and have chosen which
may be found in Wharons Prscedents, page 519 against
Justice Of the Peace for proceeding TO the duty OF his
Office in state of inroxicatiob, as an example.
Now, in this indictment the charge inoxcaton
while in the discharge of his duties a magistrate and
what particular he performed not deemed neces
Ary by the pleader 10 state The alusion to the dis
charge of duties is general particular trial is stated
particular minutes referred to allegation that
h did not discharge his Official duties with ability and
integrity but IT the example the scandal the dis
trace which his conduct bringing the admins
tstion of justice that made the crime OF INVESTIGATION
the offence 80 in the present Indictment in the act 70
by his action the best interests Of the city and therefore
offence but it the the example OF public
officer entitled by Law 20 no fee or consideration extort
ing by color of his Office a of money. Now il not
the offence stated with sufficient cearness to enable the
defendant prepare for his trial. Il strikes the mind Of
the Court that it is 30 slated
Another point taken by counsel for the defendant
Is that the indictment is not sufficiently explicit as to the
character Of the offence aud that he Is left in doubt to
whether he to defend for extoron bribery or corrup
The indictment il for msdemeanor where DO parcu-
lar phrases appropriated TO describe the act, and in
suab nice and ceptons do not usually
prevail ~ and Bur Rep.) The Indictment. in its
close in stating the offence Of which The defendant Is al
Keyed to be guilty, would 20 be sufficiently distinct
wfully and corrupuy violated his duty a. said Alder
man. showing that IL is corrupton-an offence with
which he is charged The Court therefore of the opinion
that this objection must also be overruled
.la tnn+p fnnfo all Hf
the cited by the learned counsel for the defendant
in support Of his motion, arising either upon
in courts Of motions IN arrest, where
different rule is applicable than upon motion like the
present.
witas TO the insueiciency Of the testimony upon which
the Indictment found.
The proceedings in the Grand Jury er par5e
and secre and neither the Court the public pre-
stunned TO know what transpres there and the Court
should not enter ts precincts 70 ascertain ne sucency
or insuciency Of the testimony upon which an indct,
ment is found Did different rule prevail there would
be end to motions like the present.
have had heretofore, occasion to express my
opinion IS to the utility Of Grand Jurie But while
they exist and recognized by law, the Court will not
trench upon their prerogatyes except where inorma
ton to the and the eye of the Court from out
side the Grand Jury room.
The Court has therefore, determined to- and DO deny
the motion quash the Indictment, upon all the objec
hons raised and they do with less regret because
thereby the defendant Who occupies high Official posi-
zion in community viii have fol- opportunity, before
jury OF his citizens, to clear himself from The
aspersons and the cloud which this indictment has cast
npon him.
ALDERMAN W. SMITHS CASE.
his counsel said-T desire to make apple ton in
regsr6to Alderman Smith whe stands indicted, to have
day during the present of the assigned
for his trial am induced 10 this by considera
tons and various reasons TO my mind sufficient,
which win state to your Honor. 1t may not be unknown
70 Court that Alderman Smith into the Com
msn Council of which be is member written notice
stating that, while the indictment remained pending,
he was unwilling to occupy the relation OF an active
member of that Common Council and requested TO be
excused by his associates from the active duties devoy
ing upon him representing Of the wards Of this
city He excused and, while that very salts
hetory TO his mind and probably satisfactory TO his
associates at the time there remains duty which
he to the persons who hi into the Common
Council 70 represent the interests Of the ward OF which
he Is Alderman for they have their interests
represented in the Common Council For that reascn
49, .Al.u-