New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-02-19

examinations had prescribed by th4f title, the
| prisoner, if held for trial, Is either committee or IS
bailed 10 appear Of the court having cogniLa1ce
" Of the offence The terms OF the reC0gnzan'e5
taken on letting the prisoner 20 bail relate 20 future
hrEe-tbe HeT court; thus clearly indicating prOceei
ceedngs instituted when tie courts not IN sss0a
afordIrI very conclusive evidence that the arrest
and see custody OF supposed criminal offenders -
| the sole object OF The enactment. The TACT that
the accused have certain rights secured IN the
proceedings aft rds just ground Of objection to
| tits view Of the que-tOn, because all the p-O
visions which respect the accused are necessary TO
enable the the committing magistrate to decide upon
the propriety of de;an.rg the party until t1e net
court Those proceedings are instituted primarily fJr
the protection Of the public against crime, and the
rights OF the accused but incidental Ia favor Of O
erty during the progress Of the proceedings SO long,
therefore the people continue the proceedings before
the committing mag israte, the accused may insist on
the strict Observance If all the provisions which
spect lis own rights; but when the people choose to
discontinue further progress, the accused cannot OBJ
ject, set up the proceedings even while they are
pending, IL bar Of any other form of complaint which
the people may choose to substitute.
Parties accused Of crime are not preudiced by this
construction Of the statute respecting arrests and bail
They Cannot if acquitted be again tried for the
of.nse; and if the case may be supposed in which o
citizen should be indicted, and even be tired while
proceedings pending against him before the com
hitting magistrate for the same ofense, sdihclent
remedies provided in the powers OF the Court in
/ which the indictment is found 10 afford ample sad
prompt relief. The Grand Jury have orgins urisdic-
ton and absolute power subject only to the qlalhca-
and instituted in good faith. 1 should felt less
embarrassment in the discussion Of this point in the
If counsel had not informed me that distinguished
member Of the bar who formerly sat in the ia iciary
in this city, held while Office different opinion from
that which have been constrained 10 form; but a. |
have not been favored with his reasons aud have
been told that another eminent Judge on the same
bench has expressed opinion similar TO my and
"a q Judge OF Of the Federal Courts asO, who as
understand has examined the subject cOncuis my
opinion, have ven;ured with great respect to con-
Adecr the question still open 70 discussion and to de-
eide that TINS objection to the indictment is not valid.
The view which | have taken OF this point is en-
trey independent Of the question respecting the rgts
of party to 60 behind the record further than the
statute law expressly permits, in search Of irregularities
for the purpose of quashing an indictment, shall not
this occasion notice the argument of defendants
counsel on that subject have assumed that point IN
hs favor.
The third objection taken by the defendant respects
tie frame Of the indictment as D pleading in court.
The allegation il that the indictment IS not dram ph
sufficient dcfHiteHess.
Much Of the stictncss exaced by the rules of
the common law in pleading in criminal cases Is
row swept away by the more sens bic and practical
views which have prevailed in modern times, ana
which are trust, TO continue the good WORK of legal
reform, until the last yestige Of those musty echnl
Calies shall be oblerattd from the records of our
courts. An important move In that direction was
made by the Legislature in the enactment OF the pro-
visions respecting indictments contained IL X. s.,
page l25 sec. SO. This section has received judi
cia Interpretation, IS Ward 29l,l and Il Is now held
that " An indictment l. good II II contain the SUD-
stance of the oeuse with the crcums ancos neces-
"saIy to render it Ineligible, and inform the de-
"fCndant Of the allegations against him." have e1-
ahmed the nine Of this indictment, and
fully compared them with the statute which they
ore funded These counts are in my judgment not
only sufficient within the rule, to which have re-
ferred, but are good even at common law.
will briefly consider the several objections which
are raised to these counts by the counsel;
|. The second, third anu fourth counts do not de-
scribe the devise.
Tie sufficient answer TO this objection is that the
crime described in the statute is general any estab
"iishmeni deuise or apparatus If used for gambling
is within It's meaning. The kind OF Instrument docs
not alter qualify the Oiiense, and 1t need not,
therefore be dercnbtd p Barn AID 204; Strange,
1879, l4O Again, the indictment states the ofense IN
this respect not only by the adoption of the descrp-
tive word contained in the statute but by the state
meDt Of all the circumstances which constitute the
definition Of the offense the act. Surely this Is
sufficiently specific At common law was not ncces-
sary PdLRg to do more than the p!eader has
here done @ COwies, $50 Spencer, Senator; Hawk
iDA chap. %, SIC. -, J9l. The superduous words,
expressive Of intent motive, may be rejected as
eupussage and do not faint the pleading The words
OF intention used in the act would have been suiii-
Ciet allegation in those counts in which the ayerment
OF an intent IS necessary [: Hawkins, chap 3D. sec.
90; Hawk &. c. 49,.
H. The frst five counts omit the words gambling
puroses" and annex Of the essences OF an alter
native and Distinct set of crimes.
IL is always advisable in framing an Indictment TO
use tie precise and technical language of the statute
on which it Is founded; but neither at common law
nor under statutes IS such srctne5s OF expression
deemed indispensable. Where a word, or where words
not used in the statutes substituted in the indct-
meut fox word for words that are IN 1t, and the
word or words thus substituted are equivalent to tue
word or words used in the statute, are Of more tx.
tensve signhcatOn the inc ictnent Is sufficient; as II
the word "kIowingly" be used IN the place of the
word "advistdly,' or the word wllfuly for " ma
hciously" the Indictment is sufficient II Bo5., p.
ISL. The words for gambling purposes are
omitted and in their place substituted the words,
for the purpose and with the elonious intent OF there
with playing certain game called taroi being
game on the result Of which money depended. Are
not the substituted words c0extensye in their mean
ing with the words gambling purposes" This APP
pears 10 be objection 10 mere matter OF form the
peader instead OF simply ayening the intent has de-
rcribed it. The only serious question that Il pre-
sented here u.s. whether the necessary ingredients OF
the Ofense viz: % or gambling purpCSes, Is stated
with sufficient certainty; and am of the opinion that
the statement is sufficient in this respect.
The Ctle branch of tbs point VIZ, that the peader
has ucOI Oraed into the counts zone of the essenses
OF an alternative aud distinct Offense,' Is the less
formidable OF the two grounds Of objections. cannot
discover that this ground of objection srel Actually
ito deal faro and 10 bank for Others to deal lrO &c,
are declared crimes, but the allegation 10 the ndct-
uent is Of an intention to play at certain game called
tGrO.
Finding among the objections which have been thus
hastily considered that in my judgmen, destroys
the integrity Of the Indictment must deny the motion
made to quasi It.
Nj Graham, counsel for Hall, asked that further
action be taken for few days, to enable him to de-
ode whether he would carry the up de-
muuer
The Court granted the request.
Mr. Holmes who appeared on behalf Of " iiam
Whiteside, aeked that the same course be taken IN
that case, as the same principle involved IN that
case Is In the Gaze Of Hall.
To this request the Court also acceded.
Mr.. Sickles who appeared on behalf Of several Of
49, and : al