The American. [volume] (Washington [D.C.]) 1857-1857, 1857-08-26

criminal cases, under complaint alleging one
single offence, the testimony on the part of the
complainant must be necessarily confined to that
offence. The purpose of an indictment, like
declaration in civil case, is to give the opposite
party notice of what is alleged against him. Fair
play demands this: justice demands it-and it
must appeal with irresistible force, and commend
itself to the just consideration of every one that
this should be so. Now, to illustrate what de-
sire you to understand, will take the case of a
civil action. is indebted to B in three several
promssory notes-each is substantive, separate,
and distinct cause of action. He is liable to be
sued on one or all OF them; b may sue him, and
so frame his action to put him upon his defence
as to each one of the three at the same time but
to do this he must declare upon all three in his
declaration; he must set out his cause of action
upon each; he must give the party notice of the
extent of his demand, 30 as to put him upon his
defence. But If instead of embracing the three
notes in the same declaration, he chooses to put
in one only, every man knows that his recovery is
confined to that one and on the trial of his case
his testimony must be restricted to the particular
cause of action. Seeing upon one note he cannot
give evidence touching the other notes--all that
belongs to those not put in suit being foreign to
the issue submitted to the jury.
This rule prevails equally in criminal cases.
There are many offences that may be united in the
prosecution desires to enquire into several offences
those several offences must be set out in the in
dictment. The law requires that they shall be set
out separately in distinct counts, and when the
jury comes to be empanelled upon the trial of the
case, it is aowabefor the prosecution to give evil
dence touching each one Of the several offences
thus set out. But if several offences have been
committed and the indictment charges but one, as
in the case Of civil action, the testimony must be
H. - III. IL
give to the jury or let the jury hear evidence that
belonged to the others. You will perceive, gen.
tlemen, from the terms of the indictment as read
to you that it is couched in general terms. 1t
charges meeting together for the purpose of dis
turbing the peace, not at the first precinct Of the
Fouth Ward--therc is no such specific allegation
but a meeting together to disturb the public peace
in this county, followed by an allegation simply
that that purpose was consummated Now, I'M
der this indictment, thus general in its terms, it
was competent for the prosecution to give evil
dence Of any act committed by these parties tend
ing to show that at any time and at any place
within the limits of this county, riotous disturb
ance of the public peace had been committed by
them.
1t was competent for heprosecution to call wit
nesses to testify in respect to the alleged disturb
ances in the Seventh Ward, or at the Navy Yard,
or at any other place within the proper jurisdic-
tional limits. So it was competent, under this
general FORM for the prosecution to select amongst
the various alleged disturbances any one particu.
lar case, and make that the subject of the prose-
cution, but whilst this liberty is allowed to the
prosecution, whilst the law toerates this--it is
required and it is rule necessary for the attain
ment of justice, that. when the prosecutor gives
evidence of particular act alleged to constitute
the offence charged ever afterwards the case
must be confined TO that, and the prosecution must
stand or fall, according to the election.
Now, gentlemen, the District Attorney under
took to prove to you from the testimony, that
there had been various riotings OIL this famous
first day of June. He undertook to prove to you
that there had been riot in the morning between
the hours of nine and ten o'clock, and he de-
manded at your hands the conviction of certain
of the parties for participation in that offence.
He undertook 10 show that at the first precinct Of
the Fourth Ward between the hours of nine and
tea o'clock, riot was committed, and that some
of the parties in this indictment were participant
in it. Not satisfied with resting his case there
not content with limiting the enquiry to the
occurrences that belonged to the alleged morning
riot he calls your attention to what occurred at
subsequent period of that day, in the afternoon,
and undertook TO show by the evidence that
there was another riot near the scene of the first
one, in which other of the parties enumerated in
the indictment were participating, and those
others different from those who are alleged to
have been concerned in the first riot. Not only
that, gentlemen but he undertook to show that
there were in fact two separate and distinct riots
in the afternoon, occurring in the presence of the
military-one in front OF the Market House,
around the swivel, the distinct purpose and object
of which was, not to interfere with the holding of
the polls, not to interfere with the right of the
voters to cast their votes there but to oppose the
Executive authority in its efforts to keep the
peace-an offence distinct from the morning
offence, having no connection whatever with it,
and directed to another and different purpose.
He undertook to show that there was still another
offence which consisted in opposition to the efforts
Of the Mayor to have the polls re-opened, COM
mitted at different place from that directed
against the constituted authorities the one being
in front of the Market House, across the street,
the other being at the polls, each directed to a
different purpose and participated in by different
persons. Not content with that gentlemen, he
has introduced still another, to which he called
your attention, in which he seeks TO implicate the
two Stewards, being an act committed after those
several disturbances to which / have referred
were put an end to, in different place, and at a
different time, and directed, too TO a wholly diff
ferent purpose. / refer to the alleged assault on
the fugitive Irishmen by Daniel Stewart and
Isaiah Stewart, which took place, according to
the Market House nor about the polls, hut at
some remote part of the city Here, then, are
four separate and distinct acts of alleged riot,
occurring at different times in different places,
directed to different objects, charged to have
been participated in, not by all of these parties at
the same time, but by some one or the other of
them, at different times, acting separately and
apart from each other Now, gentlemen, il it be
true that this Indictment alleges one offence, and
but one-if it be true that in order to obtain
verdict Of guilty against any or all Of them, the
prosecution must prove an offence participated in
by them all, and if it be true that according to
the rules of evidence the prosecution is restricted
to proof Of one offence and one only, how comes
it that jim the conduct of this case the jury have
been addressed at large upon the subject Of four
several alleged offences, and they are asked to
convict these parties not under the accusation
contained in the Indictment, but to convict them
upon the address Of the learned attorney if they
shall find from the evidence that they were
severaly implicated In the one or the other of
these offences. How is it to be accounted for
that under this special Indictment, governed by |
the best apttlpd rulea nj law vo,,r naf;anoa hoe