The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-10-14
Court OF Oyer and Termlner.
Before Hon. Judge Roosevelt.
TEE CASE OF THE INDICTED ALprRnr

TIE CASE OF THE INDICTED ALDERMEN.
The following is the written opinion the Court in re-
fung the motion TO quash the indictments against the
members of the Common Councl-
The defendant stands charged by the Grand Jprv with
the offence OF violating the statute against bribery In
stead Of pleading not guilty he moves he has right
to do to quash the for alleged rreguarty in
its inception Such notions founded on mere afdayits
sometimes entertained informal substitutes for
pleas in abatement Where there is dispute about
iacs the practice is both allowable and convenient But
where the facts conroverted, or as in this case
not admitted motion which, in criminal proceedings
anu o. o why OF Ss X
abatement is the only proper course On that formal
issue may be joined to be tried in the same manner
other issues Of fact. But even pea-much less an in
formal motion aidavits-cannot be received for tria
unless duly verified. No such plea says the statute G.
shall be received py any court unless the party offering
such plea shall prove the truth thereof by affidavit or
only receive but grant diatory notion where the
cused simply that he Informed believes that
one OF the Grand Jurors not qualified and that the
ccused deems q gross irregularitys Does such
n affidavit Of belief prove the truth Of the
resided at Flushing instead Of New York where was the
difficulty in procuring positive affidavit to that efects
accused frue is it not the fair we'll as the legal pre-
umptiou, that citizen regularly selected, drawn and
IesS 70 az e c Seuov q, x
is the belief Of the accusedit will be observed he
does not give the lame of any informant
Commissioner Of Jurors and then of the board composed
the Mayor the presiding Judges Of the supreme and
Superior Courts and the Court OF Common Pleas and the
Judges Of the General sessonsespecaly when the
law says claws Of 1852 969 that the persons whose
by the officers just desgnated shall be eligible to
Grand Jurors and that person shall be summon
ed except his be included in the ss selecteds
May 1t not be doubted whether the qualifications of
grand juror, thus tried and adiudcated by tribunal
rather by two successive tribunacreaed for that
for any alleged error whether Of fact or law even Il
established by positive affidavit So much for the COM
position Of the Grand Jury As to the alleged rregu-
ariy Of allowing the and interference Of Mayor
Wood, the District Attorney says-and his statement,
being that Of sworn officer, is good as the belief
the Mayor; that he lawfully present; and
that his advice lawfully asked and lawfully given.
legation to the contrary in the grand jury
witness, when Waring, the Other witness came in.
Warning, 1t seems unwilling witness for the prose-
cuton He objected to testng on the ground that his
testimony would criminate himself" The Mayor there
upon the Mayer and not the District Attorney
''took up book and read from and explained the sta
tute" &C., and Waring testified under that influence,
the statute referred o-wbch was the new bribery act Of
185s-deolares that offenders against its provisions may
be compelled to testify Sin the same manner as other
persons" provided that the testimony givenor
Them And this in effect was ali that was said to War
the statute 1t is said, not constitutional viii
not 60 into the argument on this point 1t is plausible
admi but II IL not strong enough, especially such
mere motion, to justify in annullng statute and in
behalf Of party whose constitutional rghtsif any inva
sion there not invaded. That shall be
compelled to criminate himself provision to protect
him, and not his co-transgressor; and it is the wit
ness and he only, that ought to shelter himself
other cause the witness has omitted to avail hi se Of
his privilege the injury in legal point of view, any,
in it's consequences damage third PARTIES but them
It dananum osque iy1G in other words they suffer,
shall be compelled in any criminal case to be witness
against himself" II Warning therefore, as is intmated,
became witness on compulsion-moral physcal--we
ties to see that his testimony in way directly or ndi
recty, shall be used against him. II will be time enough
ton On neither ground therefore alleged rather
the believed nresdence of the juror the supposed
irregulary in the jury neither ground there
sufficient matter In the adavts to warrant the in
qusshing the indictments. ..-.s4.