New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1872-11-01

the people In the aggregate, OF Is uttered tnro1k s
and the evidence, and you arc not to take the sat
ments OF counsel ,h aSs are insed bv proper
view and Just consideration OF the evidence 70 which
you have just listened
AUDIT AND wILLFUL NEGLECT.
Now oontlemen OF the Jury don't intend. In present
ing the views that entertain with regard to this case
TO comment upon tho evidence You have listened 10 IL
patiently II your duty to do you have hearu the
comments upon by able counsel and you have right
to receive and believe such instructions on me CON- e
ments as you think they properly contain And IN tne
application Of them you must be governed Dy tnae sense
OF proprety which should at all times prevail an1he zig
rights and wrongs presented TO you TOT eonsldefaon
The defendant this Is charged with negecung 10
audit That is the first charge; and secondly TOT per
version OF duty by corTuptly auditing claims Wnlch ne
knew 10 be false And tho duty which he was called
upon perform and with which he is charged Wild neg
lectng 10 do created by the statute OF 1870 when
imposed upon him and the Controller and the PRESIDENT
OF the Board OF Supervisors the duty 70 audit claims
then existing against the City OF New YORK. ana pro
vided that the amounts found due should be PROVIDED
for by the bonds And the statute un
der which the defendant Is indicted which mas IRE,
quenty been stated In your presence declares tnat
him by law, he shall be guilty OF a misdemeanor.
think il Is proper should understand two things
at the start and one OF them is what is meant by audit
and the other what IA meant by wilfu neglect To
audit is 20 hear examine TO adjust, TO Settle ana 70
pass upon, involving the exercise OF mind dehDeratoh
and personal attention upon the t& 70 DC cOneuvicu
In audit and not without what regard az author
ity that definition In the case OF MOrls agl ING
People, Senator Hand says the duty OF the aGdtOI - "
duty is dcut or easy it requires tho exercise OF ndg
to omit Intentionally designedy. The ofense there
fore, consists in q willful refusal or omission
whether It is wiful or not depends upon whether
it was Intentionally or designediy nhegleGsed
difference In this between emitting 20 DO an act ana
doing It improperly. Wilful neglect does not neces
no pfoof thereof It Is enough to show neglect prove
It 10 have been willfu in the sense which have ex
planned
WAS THERE wnLPUL NEGLECT TO AUDIT
Do these elements exist In this casel Was there any
audit OF the claims Of Keyser. Davidson, and Garveyi
The people claim from facts and circumstances 70 have
shown sufficient evidence that subect-the fasity OF
the CLAIMS the resolution offered by the Mayor and his
indicating stating that his duty In reference
to audit was ministerial The resolution IS as follows:
The undersigned Commission and BY virtue Of Section
4, Chapter 81 o, the Laws Of $780, ,r..
On Of the Mayor resolved tbs. the County Auditor collect
liabilities ss s COUNTY sTs PH9 Dts 70 AP @ pl Se as
BY the said Board appropriate committees
Of CLERK frc,eo and that eqOq the said County
and acton a directed By the section siorsss payment
VIZ T. IE Ts,98 E gl ssS.r Pss:son'
RICHARD B. CosSOIIT. Controller.
II the design OF that movement to gather the bills
for the purpose Of action by the Board then would be
necessary TO that they did not again 10
anime and pass upon them This arises from the legal
presumption that the auditors did their duty, and the
burden is consequently upon the prosecution to show
that they did not The people must forge the chain OF
SYMPTOMS are Of Innocence and remain till the
Is found guilty n he met again and accepted the evil
dence thus gathered however erroneous he cannot be
convicted Under the statute against Wilful neglect.
What therefore, was the deslgni Was IL deteImlha-
tion in anticipation and without designing further ex-
animation, intending to accept the certificates contem-
plated. and without anything more than
the papers yea, then there audit, such as is
required by flaw. no hearing, no examination II the
lection should be made for the adyisement OF the
Board then have the people shown satisfactorily that
they did not meet again. that they dld NOT IN Iact aut
in the manner contemplated by law ms iacJ Is LOT
you to determine on al me eVSehce 10 %Icn you nf
the omission intentional This proof is necessary,
because the intention forms essential element In this
prosecution The law declares that the neglect must Dc
intententoua not merely carelessness or nadVetence
or sap a of all me facts and cir
cumsances disclosed by the evidence bearing upon the
oeedng TO aud reference to the Board OF SUPERVISORS
and authorization which 10 be obtained from II,
should be considered and such value given 10 II as they
may deserve, If any.
INTENTIONAL NEGLECT MUST DE PROVED
In order to make this clear aude to the of The
People agt Brooks in the first Of DEMO, In which case
man was indicted for refusing to administer oath.
He was convicted and the Court said that when he
asked to administer the oath he knew perfectly well
what was required Of himi and when no said that ho
doing He knew what the request amounted TO, and he
knew when he refused it what his refusal was. Now
the language OF the Court is this: In this the JUS
ce was only authorized to state the evidence but
it his duty to take the affidavit This duty he neg
lected TO perform. The language OF the statute is that
the neglect Of duty must be wilul aud this neglect
such neglect. The Justice knew what was asked OF
him. There was nothing like inadyertence or misap-
prehension on his part. lie refused TO administer the
OATH and he intended to refuse. This was wilfu VIC
Now gentlemen II upon consideration Of all the evil
dence in this you come to the conclusion although
not willfu then the defendant Is guilty;
trary you find him guilty Of an omission and Of wlful
This Court upon this question, has no other duty to
perform than to leave It to IL is for you 70 decide
and you only II is only necessary to say, In addition to
what has been said that in every criminal case the de-
PENDANTS guilt must be made out by evidence sufficiently
conclusive to exclude any reasonable supposon OF In
with regard to the second charge viz corruptly per
yertng or wiekedy abusing the powers OF his ONCE or
trust, and certifying claims which he knew 10 be false.
knowledge-that Is knowledge that the bills were false.
2d. Certifying or auditing them with such knowledge.
aud thus acting corrupty and wickedly.
WERE THE CLAIMS KNOWN TO be FALsEi
This also question of fact for the jury. We must
start with the proposition that every officer presumed
TO act In obedience to his duty until the contrary APP
pears This charge is not for mere ministerial act but
for acting in judicial character under the statutefor
acting in matter discretionary to great extent, and
being so the rule construction that the statute con-
stutes the body designated the sole judges OF the exist
Of such acts Upon what evidence does this charge
resti
The falsty of the claims audited and the testimony,
chiefly Of the witness Garyey consisting Of conversations
had with the accused which IL said has some bearing
upon the question suggested by the witnesses aside from
the record evidence relating TO themselves
Are Keyser Davidson and Garvey, men Identified with
the scheme Of plumber and Of them participating
in its fruits The OF oense like this is the
wrongful intent, without which it cannot exist, and 1t
should be established not only by reliable testimony but
the facts and circumstances when grouped together,
should be sufficiently conclusive to exclude any
able superstition Of the innocence OF the accused.
The evidence Of men who have participated In the crime
charged or who connected with Its subject matter
as Keyser Davidson, and Garvey. were, should be
coi1vd on the subject of the defendants guilty knowl
edge and corrupt conduct with great caution The jury
should be entirely satisfied that so far it bears upon
that element In the 1t is trustworthy Converse
TONS IL must also be said, though regarded danger
Gus species OF evidence when TO by honest