The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-02-19

va pfOCocu-
mos we're pensing against him before the committing
aistrate 'or the offence sucent remedies pro-
vded in powers the court IN which the Indictment
il found to afford ample and prompt relief Tho Grand
Jury have original jurisdiction and absolute ywsr sub
ec or he qualification that their proceedings
be regular in form AID instituted In good faith. should
have felt embar assuent in the discussion OF this
point in the ncounse had not informed that dis
ngushsd member OF the bar Who formerly sat In the
from that which have been abed to FORM but -
have not been favored with his reasons have
told that another eminent Judge the bench hss
expressed an opinion similar TO own, and as Judge
Of enc Of the federal courts also who understand
has examined the subject In my opinion have
ventuIed with gres. respect cansidsr the still
open to discussion and decide this objection to
tbs Indictment is not valid As the view which hare
taken Ct this point Is enIely independent of the ques
cord tur,hsr than the statu law expressly ts In
search Of Irregularities FIR the purpose Of qusshng an
inc shall not On this 9,cs.nn nosIs S.ss ss
suDed that point in his favor The THIRD taken
by defenc ant respects the frame Of the indictment ~
placing in court The allegation is that the indictment
il rot drawn with sufficient dednitenefs. Much of the
strctness of exaced by the rules OF the co
me law for peaeDg IN criminal cases svep. away
vailed in modern unes sno which ave- trust TO continue
the good work of legal reform until the last vestage OF
those musty techIica.es shall DO otterAtsd from the
cord VI An important move in That direcu N
made by the In the Actment Of the prov
psctir indictments contained T. s., page 78
see ~ ion has judi ia inter pretr
II n rs Weni. III anc II Is held that "An indict
nsnt coed II contain the substance OF the offence
With the circnmf necessary TO render II integi
bic iLforui the defendant Of the aeg against
him. bave txam.L ed the nina counts of this indics
ment, and carefully pared them With the statute
which Il ey are ndcd These counts are in my iudR
mept, rot oriy sufficient within the rule TO which have
referred but gooi even at common Ia Will briefly
consider tie several objections shch raised to these
counts by the coepsel:-
LIST, The seccpd third and fourth counts do not de
scribe the ceye. rhe sui ent to this obi scon
is that the crime described the statue Is general
any Establishment, device, apparatus" II used
or gambling is Wit n its esnDg rhe sind sf iasru
psd does not alter Justify the ofenoe and
IL neeo therefore be described Barn and AID 2oi
] Strange 1850 lao Again The Indictment states The
offence ia this respect not Only by ne adoption OF the
statement ofs ire circumstances rh n consul u.e the
deni ion of 'he offence in the a,t Surely this 10 SUN
GENTLY specific At common Jaw, II was not necessary
in gambling 70 dc more than the pleader hiss hers
cone re- Ccves $780, spencer, Senator Hawkins, chap
Is, 81, 5e The supefAuous words Expressive OF In
tent CT motive may be ed as surpusage' ano 90
tire p'eatng The lords Of intention used In
the ac would been sufc,en. aeg ton in those
counts which the Of intent Is necessary.
r. Hawkins 3D. 70, Sec 90. Hawk, c. c d:
3D. The frs. five counts omit tbs words "gamalfcg
purt and OF the OF alter na-
tive d. met IT crimes 1t is always acvsao bic
in framing Indictment ,he precise ana technical
language 4 statute which 1t is framed; but neither
AT common Law under 1T ues Is such sric mess
Of Expression ctemsd indisp nsioe. Where word or
where d. ia the statutes are IN the
indictu fur word fer that in It and tbs
word words thus uted equivalent to the word
used the statute of more extensive sig
C1ncauNn, fEe 1bC1csmtnr kCnCteDt, As II the Wofn
sknowirpJ" be used the place OF the ,rd ed
ly,n &c thu word y,fuy" for g Ipaliciously in the
indictment is sufficient II Bsa 1sl Tue words 'for
gan ng purpose o'rtted and Ia thir place subs
tuteo the So6s sor the purpose and with tae eoaus
intent CT tere 'ita playing certain game called f.o
Are lot The tubsued words extensive Ia their mean
ing 18th TIE woros gambling pur poesr Tais APPEAR
70 re al con 20 mere mater OF form; the peade'
instes cf SIMPLY aveIripg tie inten has describe it.
The only seou question presented here il whe,he-
the necessary ing eden Of offence for "a bling
purpoEes,' tsed with sufficient certain VI s1o am
OF the oiiIion tha tie statement il sufficient IN this
respect,
ire ether branch this point, that the p'eadef
ba sfed lato TIE oge Of the essen ,es
a4teri alive AUD clstfc offence the less forDiso
81 The grop ads Of objec Sns canDot disc3ser tha
TIM ground Of ohjecti il real actually to dea frg
bnt The allegation in tee Indictment rs Of al IN
ten ion to play Ger taiD game led faro.
Finding smorg tie tljec,iOns which have been thus
hastily considered, that. ia judgment, destroys
the integrity Of the indictment must deny the motion
made 20 quash it,
MOTION TO ARREST JUDGMENT IN THE CASE OF
HEARN AND OTHERs.
Senstr parieI f. scses counsel for P. L. Hearn and
others, then said
May it Please he Court. desire that the cases Of
Hsarn and he other aetepdaats, for rom ap ear,
Should tie caleb 1t will be rememoered that when
Lad the honor, las Monday to address the Court
with reersEce to the indictments fund against these
parties, their sehal pleaded guilty Ia the ecat
cases, asked for suspension ment on midi.
ton that the parties should not again b. guilty Of vio-
latng the under whica they indicted. l. will
so be ,hst the District Attorney ia his
IN Court scquescsd in the suspension Ct judgment for
which asked ard sisted to the Court tina proceei
irg having for heir to abae the evil Of bling
aLdttat moreover the ion which che suspe sion
Of ent would rest being Ia his opin IN sufficient
cury 10 the public against further violation OF the sta
tute he Shouts therefore, not consider that his duty de
mapcec Of him IL move for Judgment the in
which tits plea had been entered old fall TO OBJ
hat the Court then said 1t wouli be SUBJECT for
its consideration whether or no. under these cir
Uulpu NTH fIuO
also that Loswithsan.Dg tie views expressed by the
DISTINCT Attorney. l. niea. 70 the conclusion 70
the statue. nae net suppo-ed, Tor moment
that, when the district Attorney, representing, as
as be does, the -ubic haa aaquessed in the
Tor suspension u judg meat The Court would deem II
necessary 10 make any rider or take any aston oihec
than that upon by the counsel Of the respe
par Lies to the Indictment heort Cour,-the pe0
al The de eDdan.s Your honor Ii aware that Then
sta I'd that the defendants, in pleaciSg guilty had
been custsd much by distrust of their aointy
etabsh good defence ageint the charges of Jen i1gs
cisipclinaoo 10 ga Aject The pu ,c to the
exprse ard tbe tribunals to the less Of iims woicn
would be involved In the trial Of especially
they had determined to that time forward 10 be
concerned With connected Ia any with ubng
henses bad anticipated, and thought reasonably
anticipated that pledge OF this lind the faithful psr
sDce OF which light be guaranteed oy the ser
o consequences to tue defendants iuev aoy to result
from ts volai n would b. considered by the pu ,h,
prosecutor sufficient eurty for the profession Of the
public against the evils onplaned Toe at of
the District Attorney, Monday last proved the entire
oesr IL mind that, the brst occasion when these
cases were called up, Ia January last, statei
til .t | ente tanned grave DOUBTS OF the suHi
ency OF the indie ments, and ;hese doub.s
have teen Strengthened ny the intmstion which re
Court has thrown out to-day in passing On the mot 10
the case O s tbst though 1t dssented from tbs views
OF ais counsel IL s considered the questions raised
the indie meus TO be Of grave auo important
ter that 1t had theI efore, bestowed on them uch
ious attention AMI that they deserved to brought
the notice OF court II review. Under ali the circun
stances therefore, having given the subject my careu
md In vie ~ fha ~ fb.tfh
day last, assuming responsibility viii, bad never
doubted, rested entirely upon the public prosecutor,
than hestaed whether it wou1o scq uiesce Ia
dsposal cf the asked for by me, counsel
tor the eeepdsnts. aud agreed to by the puo-
lac prosecutor, have deemed it my duy to advise
every egs ground Of objection which TO the Tn
dicments In addition to the ,.ion TO the ndc-
nens, taken in the OF Hall, there Others IF
equally grave character which, In my view ought to be
considered snc have therefore advised the defendants
TO In arrest of judgment, and Ike thu
IN he nal Of wh0@e I a