The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1861-01-15
la w INTELLIGENCE.
TRIAL OF MILTON WHITNEY


first called. IL found that five jurors were ab-
SENT either from sickness, nonresidence in the city
or absence from the State. Mr. James Lucas was
appointed foreman by the Court, and he as well
as the other members present, were sworn in by
the Clerk. Tho Sheriff was directed to summon
five more members from the jury book, and the
Court discharged those who answered to their
names until next Monday morning. After the call
of the Petit Jury, they also discharged
until the same time.-Mr. May, the States
Attorney, then coming in, the of the State u.s.
Milton Whitney, indicted for making false report
to the House OF Delegates, was resumed. W. Pnkney
Whyte, Esq, commenced the argument on the part
of the defence at quarter before IL o'clock. Mr..
Whyte said that it had been suggested to him that
III was strange the traverser should repose much
confidence in him in calling him to take part in the
delicate and responsible duty of defending him under
the indictments now pending against him in this
Court For himself he might say that while his ac-
quaintance with the rayerser had been very limited
and confined exclusively to the trials in this Court on
the opposite side of the table, vanity did not even
permit him to suppose that it was any per-
sonal confidence, either in his integrity or
professional SKILL which induced the deposit in his
hands of this delicate trust; but as a lawyer he
knew that whatever division might characterize
other places of intellectual contest whatever dispu-
tations of a personal nature are even going on in
the legislative branches of this government, they
interfere with the due administration of JUS
tice within these walls. To the honor of the bar,
continued Mr. Whyte, as it has been well said what
ever may be the public principles or the private
habits of advocate, they never throw shadow
the path of professional duties. Thus to the
cold examination of his proceedings, and to an
honest presentation of his defence, the traverser
had called him to his aid from the ranks of his po-
litcal opponents. Therefore, unmoved BY feelings
of friendship, not blinded by party afiation,
with the traverser, but in the discharge of pro-
tessonal duty to client, by whom he had been Pc
cuniarily retained and after the calmet reflection
upon the case he would say to his Honor, that un-
less the Court was prepared to trampe under foot,
all the judicial ramparts erected, for the protec-
poft ha 10 nf fba nifi ot iph
judgment decide against the trayerser.--Mr.
Whyte said be would proceed to state briefly, the
grounds for the above opinion, but before examin-
ing the facts, he would call the Courts considera-
tion to the legal objections to the indictment itself
No judgment in law, could be entered upon this in
dictment for many reasons. The first was that this
Court has no jurisdiction in the The indict-
ment alleges the passage of the order at
annapolis, and the exhibition of the answer at
Annapolis; but both under ride licet that it was
done at Baltimore. But the proof shows that the
answer was delivered at Annapolis Mr.. Whyte
then contended that neither the Court nor the
Grand Jury had any jurisdiction over the offence,
if it offence. The venire must be laid and
proved according to the jurisdiction and this Court
has no jurisdiction greater than the old Criminal
Court, which was specified by Act to be within
the city. If the offence was committed in Annapo.
lis, this Court could not entertain jurisdiction in
the case. Mr.. Nhyte, to sustain this position, re-
ferred to a decision OF the Court of Appeals, Par
rish rs. State, IA Maryland reports, 246. and
argued at length upon that decision. Again
the indictment alleges that Mr.. Whitney, as
States Attorney, made this return, and
in the next paragraph spreads out the returns
which shows that he did not make it as States At
torney, but expressly refused so to do. (Mr
Whyte here read indictment.l When the order of
the House passed, on the I'd February, 1860,
the traverser was not the States Attorney, who
had received fees of Office in lS56'7'S'9. His
term began on the first Monday in January 1856,
and ended on the first Monday of JAM, 1860 The
Constitution shows this. He was, therefore, a
fa Itivnr m hIsI Il.
office of States Attorney, claiming for new term,
he was entirely stranger to the receipts and ex-
penses of his predecessor. He was private citi-
zen, and as private citizen he gave the informa.
tion in his possession to the Legislature (The re.
port to the House, which is signed Milton Whitney,
was read by Mr.. Whyte.) How could it be said,
to have been Mr.. Whitneys duty, as States
wiliul neglect of such duty to make an untrue
statement, if it were Suppose the House had
asked for Mr.. Gwinns fees, in the four preceding
years, was 1t Mr.. Whitney's duty States Attor-
ney to return them? Could he have done so?-
Again, there was no legal offence shown by the
prosecution to have been committed by the traver-
ser as States Attorney, if the act had been done i'll
his official capacity. Blackstone says, a crime or
misdemeanOr is act committed or omitted, in
violation of public law, either forbiddng or com
mandng it. 1t is clear, therefore, that there must
be breach of some positive official duty. Mr..
Whyte then argued that there was no law reuui-
ring States Attorney, as part of his
official duty, to make return to the
House of Delegates; and, therefore, if there
was law making it his duty so to do; then
it was immaterial to inquire into its truth or
falsty. There no law making it the duty OF
the Attorney-Genera or his deputies to do so,
and none since the adoption of the constitu.
tion creating the Office of States Attorney. MIR.
Wbyte dwet somewhat at length upon this point,
in reply to the proposition advanced by the State
that the powers of the House of Delegates were de-
rived from the laws of Parliament, and that because
an offence committed against the House of Commons
in vav hioi i,Jio ot
ment stands on the same general principle. Mr..
Whyte denied the proposition, and read from
article g. section 28 Of the constitution contending
that the powers of the House of Delegates were
expressly defined by that instrument, and that not
one clause of it imposes upon the States Attorney
such duty the prosecutor it has right to do
Mr.. Whyte then asked the prosecution where
he found the authority to demand a conviction on
this indictment. Could he Law his hand upon any
case, such this-where public officer is indicted
for an offence, alleged to have been committed in
report to the House of Delegates? He mr. W.
could not find one. He would for the sake of ar
gument concede the validity of the indictment and
the jurisdiction of the Court what are the facts?
Does the order ask written return or report p
Not at all. 1t asks for information to the fees
received by Mr.. Whitney in the years 1856, '57,
'5s, $50. Was he guilty of neglect of duty in not
giving information? Did he notgo to Annapolis
and stay week, and beg and seek investiga-
tion? If the House wanted moro light why
not ask him for it? If it was INSULT.
cient information, why not let him come
before the committee and explain. They had
from the Comptroller of the City, report of bis
fees; they had from the Comptroller of the State
his report of the payments into the Treasury of
his excess of office fees they had appointed COM
mittee with power to send for Sheriff Creamer, the
clerk of Mr.. Gaskins, the CleSk of this Court and
others, and they had Mr.. Whitney at Annapolis,
and yet not one word was said to him of disappro-
baton, of want of information or otherwise. That
not all. The Grand Jury then in session for
January, 1860, saw no offence in his conduct. The
. fln L..
no harm in his report, and until the close of this
Grand Jury, now nearly one year after the trans
action, is this report brought forward to convict
this traverser. The allegation in the indictment
about this report, charges that it FALSE fraud-
lent and deceitul that he charged as legal ex-
penses, large sums of money, which legal
expenses were not just and true. The prosecutor
says that the States Attorney had no legal ex-
penses at all, and therefore 1t fraud to return
any. The House did not think so, else why pass an
order asking him to give information as to his
legal expenses Who was to determine the legality
of the expenses? The House asked for them, and
if Mr.. Whitney had not returned them, would the
Grand jury not have indicted him for not giving
the House the information? and so much for wilful
neglect of duty in that The State says the States
Attorney had no right, under the constitution, to
any expenses whatever; with the same confidence
he (Mr. Whyte) would say that he had the right
to just and reasonable expenses. When the case
came up involving this question he would de-
monstrate the fact beyond all doubt The
learned prosecutor cannot escape the call for the
legal expenses, and he feels the want of proof to
show them false He refused to put in the accounts
of the States Attorney, because they not to be
found in the Treasurer's office, where they to
be put for safe keeping, as he contends, and relies
that certain clause of the constitution, article
10, section ], to maintain the proposition. There
is not word in that section said Mr.. Whyte,
about tire Treasurer's Office, not word. Mr..
Whitney could not have complied strictly with
that section without violating other sections in the
constitution. Section l, article 10, says that the
amount of fees when exceeding three thousand
dollars shall be yearly paid over to the Treasurer
&C., subject to the disposition of the Legislature.
Section g. article 6, prohibits him paying to the
Treasurer without tie warrant of the Comp
troller. Mr.. Whyte then contended that
it was the design of the trainers OF
the Constitution, to allow legal expenses to pub
lie officers holding positions like the States Attor
ney. He referred to the Interpretation put upon
the words "pay and compensation" by the law and
accounting officers of the Federal government, and
said that in every case they had ruled that Off
Ger entitled to necessary contingent expenses.
MIR. Whyte then taking up the book of the de-
bates of the State Convention said that the learned
gentleman on the other side, had given his verbal
history of the proceedings, without producing the
evidence of it.; for himself he would prefer going
to the fountain head, to whose limpid waters they
had been so often invited by their friend. Referr
ing to page SIT of the debates he said that it
showed, that the framer of the clause, lin
section article l0,) meant that the officer should
receive, his personal pay, $4,000 clear of all
penses.-Mr. Whyte expanded considerably on
this point, and contended that the States Attorney
had plain right to legal expenses. Were these
The first item of Office rent, specifically set forth
is for 1858, at $500. Now what did Mr. Whitney