New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1872-03-09
TENTH DAYS PROCEEDINGS.
Mr.. sTOuGHToN's ARGUMEN


Uponrtbe opening of the Court Mr. Slough
ton resumed his argument of the previous day He sad
Now have called your HonOrs attention TO the first
count Indictment that the defendant simply WILL
fully refused 10 audit claim said to have been presented
OH behalf Of A. Garvey There is suggestion in that
count from beginning To endand that observation ap-
plies equally the second count-there is suggestion
that this claim thus refused to DE audited 10y Hall was
unjust or fraudulent claim, or that he had any
earthly reason to suspect it No implication OF
dishonest motive IL suggested by the indictment so far
the first count Is concerned. Now, assuming this
been intended to present an oense under
the statute Of wiful refusal to audit suppose there
had been willful neglect to audit, and suppose
upon this trial that fact having been proven.
Mayor Hall should here offer an excuse, or
by way of defense that the claim part Of t thus
sented for audit unjust. Would that be any
whatever 10 the Oense charged of wfully refusing TO
audit Would not that Ofense he complete irrespective
the question to whether the whole bill or any part
Of 1t was fraudulent not suppose IN this case
offer to show part that this was city and not
county liability and that It incurred subsequent to
the passage the would not either OF these pr0po
sitions If made out by proof show that this was not
claim which the Mayor either bound 10
audit had right to audit ! suppose proof
is made that this claim not a county
liability but city liability, and was incurred after the
passage the act not these elements Indispensable
ingredients OF the oense and must they not be expressly
ayerred in the indictments The question raised as
to what meant by liability incurredf lt means
the contracting by the county OF Indebtedness u
Inability anterior to the Goth OF April 1870. When the
materials furnished. when the work performed,
the liability incurred No duty ls devoyed except
10 audit liability incurred prior TO the passage Of the
act and when the material furnished aud the labor
performed the liability incurred within the mean
ing Of this statute. Inasmuch the liability incurred
must BE- incurred prior To the 10Th Of April 1870 and
have been county liability no duty arose on the
part OF Mayor audit and right touch audit
such claim unless IL 80 arose.
Now the second provides that every wlful neg
perform his duty, where special provision is
made for it's punishment shall be misdemeanor de-
call your attention TO the second count in the in
dictment for the purpose or showing that 10
charges no other ofense than the ofense charged
in the Mr.. stoughon read the second count,
which stated the Mayor, Controller and Board of
Supervisors egected to examine INTO the validity and
correctness Of the claim and contended that 1t did not
create any duty other than that imposed by the act
but IL did extend the term and that the phrase cited
might have been omitted He then continued: pro-
coed now TO the averment In this Indictment and
under claim that the question whether this was
lust or a fraudulent claim Is inadmssable.
Mr. Treman said that Mr.. stOughton was opeping mp
new question which would require TO be argued IN
WHAT THB INDICTMENT CHARGES
Mr.. SOnghtOu ] now considering What the
ayerments under this indictment with view 10 ascer-
tain whether Ii ~ competent under them 10 receive this
evidence showing that this not fraudulent
claim That comes directly TO the point and leaves the
indictment stand for what II is worth assuming the
duty raised by the prosecution Ia ONE which, by refer
ence TO the thirty fifth section II not performed mis-
demeanor. Why is the Mayor charged with offense
here they were not attempting to prove at all
They are attempting to prove that the claim
actually audited was false and fraudulent claim and
my purpose show the real nature Of the Indictment
and what should he proved under IL. The Grand Jury
after full did not At to put into that
Indictment than the real onense and TO that the
trial should be confined The Indictment asserts that he
was bound examine into the correctness Of this claim
and that he did do There here NO allegation
that the claim fraudulent allegation that
ii was an unjust one no allegation that ID falsely
certified with intent to defraud the county no aega.
less entirely inconsequentia In its resus Everything
presumed In favor OF honesty until
contrary proved for has been said that the law
ike charity. thnketh evil Of no man.
What allegations have We GOT thens First that the
three Auditors signed and certified they had audited
claim when they had not and second that that claim
made without any sverment or sugsestion that u
was false fraudulent or unjust, suspected to be
either The charge resolves itself into this that these
three men directed claim to be audited without having
audited IT, have always taught that 10 inds
penssbe In an Indictment state every fact on which
II was sought 10 be sustained. We not now prac
ticne under thu cOde-when IL necessary to prove
everything and nd out what amountedto you could
The Grand Jury Of the county and they were sufficiently
influenced ~ present a the charges against my friend
and brother here did not suspect him guilty Of ana did
not venture 70 put such charge this into the IN.
Now in the second count have nothing but
the charge that they faSy certified they he'd audited