The New York herald., 1870-02-04

nesses for tho Government.
the case Of the United States vs.. James Barker +.
8. Bambcrger and Others which has been several
days under investigation before Commissioner
Osborn, was yesterday brought to q sudden termi-
nation by the dismissal OF the case as against the
defendants and their prompt discharge. The court
room, as on all the previous days OF the examina-
ton, was crowded by witnesses ana friends OF the
defendants. From the closing proceedings, as re-
ported below, i5 will be seen that the predictions
made In the HERALD when the case was first pre-
sented to the puDlicthat It would turn out izze-
have been verified. The government completely
failed in making out q case, and when the examina-
tion was called on yesterday at the appointed hour
(three O'Clock r. NJ Assistant District Attorney
Purdy who very ably conducted the prosecution,
was compelled TO acknowledge that the case could
not be sustained.
JUDICIAL COMMENTS.
Commissioner Osborn, In dscharging the DEFEND
ants made special point to the eject that he could
not say "honoraDJy discharged" as there were cir
cumstances within his own knowledge relating to
tile manner in which the several witnesses testified
that cast suspicion on them as to their being tam
pered with, and In consequence had varied IN their
testimony before the court from the statemenrs made
In their separate adavts, and also on the prclmi-
nary oral examination made by himself as to what
they severally knew OF the case.
Messrs. Bell and SedgwicK counsel for the defend
ants, appealed to the Court to withdraw the quail
fed discharge, but without effect.
THE GOVERNMENT ABANDoNS TIE CASE.
When the case was called on
Mir. Purdy rose and said:-May 1t please your
Honor, when l asked Tor the adjournment OF this
case on the previous day OF the mlnation, did
so because was informed and believed that there
were other witnesses could produce, whose testi-
mony would be very material in the case, and who
would be here to testify to-day. But these wit
nesses when brought here, and when examined
them In my office, ind are OF the Same pattern Of
the other witnesses and don't propose TO call any
more of that stamp The government has used all
the means within its power to bring together the
witnesses conversant with the case but from some
influences, OF which VIC are Ignorant, they have
kept away; ana those witnesses whom, through
the process OF the court, we have compelled 10
attend, when put on the stand, have testified
very Inherently from the statements made by them
and from what we expected of thcm and differently
when you privately examined them. The govern
ment, therefore. can proceed no further III this
matter, and we submit the case as 1t now stands be-
fore your Honor.
MOTION TO DIsnIss-TILT BETWEEN COMMISSIONER
AND COUNSEL.
Mr.. Bell counsel for the defendants)-Wc now ask
that Honor dismiss the case as against these de-
fendants.
servatons during the progress OF this exami-
nation which struck me In endeavoring to
ascertain the foundation OF the arrest OF these
parties and the mode Ill Which the witnesses
were brought on the stand to testify. This Is
certainly very peculiar cast and one which, IN my
experience, have very rarely met with. do not
even now desire to make any observations on the
case the evidence Is all submitted by the District
Attorney and Motion has been made py counsel to
discharge these parties. But am sitting as a COM
mltlng magistrate TO investigate Whatever circum-
that may be brought before by these witnesses.
aud must here say that there has been no case
alleged collateral of1ence-the removal OF whissey
from the Eighteenth street distileryhas been pre-
! senJed In the testimony Of the witness who swore
to the removal OF distilled spirits from that place
| one morning In April or May, 1855, on whicn tRe
| witness said there were no stamps. But that
] witness' evidence was not such as to enlighten
| me as to that witness knowledge or what were
the legal requirements AT that time. And yet that is
the only evidence upon that material point In the
case. am OF opinion further that ali the defend
ants, those actually under examination and those
more recently arrested as being co.consprators with
the original defendants, must be subject TO the same
ruling. l am not willing to say--nor shall say
that honorably discharge these Defendants; out l
do say, that the evidence am compelled to dis.
charge them, because although there Is no sufficient
proof tDat these witnesses have been tampered with
by the defendants or the defendants friends, still
| there are sufficient grounds for suspicion IN my
mind that the witnesses themselves have
been oil the time throughout the pendency OF
the case trifling with the government and have
really acted in way which may designate traitor.
| ously, compared with that IN which they had pro-
| posed TO AID the government In this prosecution
| and In bringing certain parties to JUSTICE But
here say sitting as United States Commissioner and
past. bad men have escaped from the penalties of
the law, for the reason that they have falsely sworn
| to afldavits before notares puolic instead OF an
officer Of this court am In the future determined,
LII the first place, that these false swearers shall noE
! 60 unwhlDped Of justice, nor shall innoceat nen
suffer rom suborned testimony, for shall hereafter
insist tnat the atildavits upon which are TO be
charged, arrested and examined before me snail be
| sworn to before me personally or shall insist upon
private examination OF sucn witnesses as the 0y
ernment may rely upon to substantive the charge
| therein contained. shall see hencelorth that wit
nesses make their statements undeTstandingly, and
II after that they are contradicted, II the TACT ap-
pears tnat they are trlfng with their oarh5 with
the court shall immediately order tben into the
custody OF the Marshal to answer for the offence
Which they may have thus committed LII the nature
OF perjury . THESE o6seryaons "a deem due at the
i are discharged.
Mr. Bell, for the Observation-Disclosures the Commits
soner disposes OF the case nnaliy have single
| mark to make in justice To the parties who have
| been under charge hero. In the observations in-
duiged In by the Commissioner previous 10 making
! his dnal disposition OF the case o rejection was
thrown out against the conduct here OF the defcn-
dants or Their friends. Ihe Commissioner remarked
| PENDANTS. Now say here in open court upon my
responsibility as counsel in the case That, 80 far as
know, and SO far as believe or have any reason TO
believe, the defendants my clients In this case, have
never seen nor talked With any one single Wit
\ ness called on behalf OF the governmant so
| far from this being the case. / at once advised
| my clients, from the moment the proceedings were
| commenced TIL this moment, to have nothing what
to do with the parties that might appear here
as witnesses for the government They nave fol-
| lowed my advice throughout, and now ain nrmly
| convinced that not single witness upon whom the
| government relied to make out a case aginst these
| parties has been in any way tampered wtn or has
been even talked to or spoken with regard to the
| some two or tnrac OF the witnesses VINO
| have been called against us, we are prepared
to snow were never In the distcry referred TO at
all, and who and what they were and are We do not
know at all, nor indeed DO we care, now that the
prosecution has fallen through OF ITSELF With these
| remarks l would Close Dut that have yet to say
I that these defendants should In justice To honor
| ably discharged. There Ia nothing IN the to
/ imply even q shadow OF suspicion against them
originally as charged or IN their subsequent conduct
1 nd hah no ov1n minat nd I Iuuh