The American. [volume] (Washington [D.C.]) 1857-1857, 1857-09-05
VOL.

aes oouPiaineu oi was the obstruction interposed
70 the orders OF the Mayor to have the polls re-
the indictment. If the act complained Of was
the getting OF the swivel from the Navy Yard,
ana the use made oft afterwards, it was compe.
tent to have charged that in the Indictment and
humbly submit that in all fairness, before these
parties were arraigned here and put to their de-
fence this specification ought to have been made.
II various acts are alleged to be committed by
these parties, amounting to riots on that day, it
was competent for the prosecution to have framed
the indictment with several counts covering each
| specific offence, and with an Indictment thus
4 framed, containing the several counts, it would
have been lawful to give evidence to the Jury
| touching each one of the offences But, gentle
men, this indictment is not so framed and we
mean to insist, that under well settled principles
OF law pertaining equally to the trial of civil and
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 a
declaration in civil case is to give the opposite
party notice of what is alleged against him. Fair
| play demands this: justice demands III; 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
civil action. A is indebted to B in three several
promissory 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 as 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 so 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 faction. Suing 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
same indictment and prosecuted together. IF 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 empaneled upon the trial of the
case, it is allowable for 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
confined to that one, aud it is not allowable to
give to the jury let the jury hear evidence that
| belonged to the others. You will perceive, gem
| 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-there is no such specific allegation
but meeting together to disturb the public peace
| in this county, followed by an allegation simply
| that that purpose was consummated. Now, un-
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, notous disturb
ance of the public peace had been committed by
them.
1t was competent for the prosecution to call wit
nesses to testify in respect to the alleged disturb
ances in the Seventh Ward or ut the Navy Yard,
or at any other place within the proper jurisdc-
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 tolerates this, it is
required and it is rule necessary for the attain
ment of justice, that when the prosecutor gives
evidence of a particular act alleged to constitute
the offence charged, eyer afterwards the case
must be confined 10 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 OH 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 TO 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 10 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 tho 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 Stewarts, being an act committed after those
several disturbances to which | have referred
we're put an end to, in different place, and at o
different timo, and directed, too, TO wholly diff.
ferent purpose. | refer to the alleged assault on
the fugitive Irishmen by Daniel Stewart and
Isaiah Stewart which took place, according to
my recollection of the testimony, neither about