The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-03-09

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raised Dv the fourth section to be binding on him,
| n would be q non-peri0rman,e OF duty and would
become q mlsde meanor. sut his objection was
a s@si Of a' iass and fraudulent cam AG ana.
| peradventure. TO show that Mayor Hall mad q
Corrupt knowledge OF Its being false and fraudulent.
lie contended that no man could be lawfully called
TO answer charge founaed on This indictment and
| TO have turned against him this testimony to
| tain avernents which the 1rand Jury had not
thought proper to put into the Indictment Now.
| 20 back TO wherein the
SECOND COUNT DIFFERS FROM THE FIRST.
couh, proceeas 10 STATE 'nas ,ne sasI
| ana the President or the Board OF Supervisors
subscribed certain certificate In writing whereby
m substance II was falsely certified that such three
officers had audited the SAID claim, and had allowed
the sum OF SAL 562 ~ Whereas IN truth and In fact
The SAID Abraham OaKey Hall had not audited the
said claim and had not ascertained Its correctness.
| Your Honor VIII observe we have here an allegation
| that they mad audited claim, when IN fact 1t IS
alleged That they had not audlted it, but there Is no
one. or that the certificate was gwen with the
Intent OF deIrauding the county. There - no
| averment that the act was not totally innocent,
| utterly harmless and entirety inconsequentIal OF
results. Having averred that this claim mad not
been audited put that there mad been ase Ger GER
Connolly. &C., paid the sald claim TO Andrew J.
Carney" Your honor viii perceive That TINS cert.
| ncate alleged 10 have been signed by these three
persons alleged to De lase certificate, not Ger.
tlacate OF a false claim; not q cerLifcate that
Claim had Deen audited which They knew or had
reason TO believe was false; not certificate that
they had audited claim which was not wholly que;
and everything Is TO be presumed IN favor VI hon
esty and innocence until The contrary IS proved;
for 1t has been said That the law, like charity,
nave we got, thens First, mat the three auditors
signed q certificate that they had audited ciaim
when they had not: and second, that That claim was
paid without any averment suggestion that II
false, fraudulent or unjust, or suspected SO 10 be Dy
either. What offence wond DO created ny that state
..wIIruL NEGLECT OF DUTY ~
Is not the false certificate tnat they mad audited en-.
Rnnql ennt VA
wilfully reused TO audtY Is the allegation that
they mad certified that they mad audited when they
had not equivalent to allegation that they mad
10 thus merely that these three persons directed
claim 10 be paid without auditing 1t. would ike
to see an Indictment framed that these three men.
oeing bound to audit all county llaont es, mad paid
one OF them without auditing IT, Under wnat Sec
ton would that offence conner
Mr.. Tremain-n 1t had been corruptly done
Mr.. observation-disclosures Is the very diffculty in this
case II u mad been stated that, knowing the said
purpose Of causing II TO he paid ana thereby
ana ns Ssns Vas p pa
| allegation OF fraud and knowledge Oh their part
that 1t was fraudulent no onence Is stated. Wei,
criminal law, and It Is not necessary TO study
great while TO learn 1t al-but have always been
taught that 1t Is indispensable In an Indictment TO
g %aSs IL ss a.;
the pleading to the proof, and it Is blessing that
| we are not under that which has done much to
our ,neS we're to
present all the charges against my learned friend
and brother here that they suspected MIN guilty
Odd not venture to put such charge as that into
this Indictment. Now. coming down to where lett
the second count we have
NOTHING UNDER HEAVEN
charged but thar they falsely certified that they had
audited o claim which the law presnmes to be just,
iasc ceruiicate or statement Of audit performed
| might well b. made without the existence OF Wliul
Honers attention. to the fact that Ia its very nature
offence IL charged by the allegation OF this false
certificate and It's payment, and no other law makes
it. an offence without other ingredients which are
not averrcd MIR. Stought0n tnen referred to Lam
sing, page IT. to show the difference between mis-
leasance in office and wiiul neglect to perform an
| official duty. or non ieasance. He continued-Ene-
niles may mob man up TO the very portals OF the
| very. porcn; but when they, get within their
| hands become nerveless and the law rises
| forms and established principles. And these set
tied forms and established principles are not only
necessary Tor the protecrIon OF tho defendant but
also for the protection the Judge, Tor when the
Judge, human as he Is, may be urged by voice
OF myse r. but speak the law Whatever that is
not my business, but It Is the result OF a higher
power to which, If tail to conform, fail myself "
| So mat the Judge. so protected by forms and
| rules, answers ME disappointed
| HUNTER AFTER
a victim, 81 sacrifice only with the legal knife.
| welded by legal bands" There always preju-
| dice enough against the defendant. / have, Your
| "Permit no one 10 speak to you ON the subject ol
this case. Let no human lips Of charity say one
word In Justification excuse OF the defendant"
But the public prints may utter tneir denuncIa-
| lions OR arguments and the jury read those:
| but "Hear nothing that charity may offer. ain
pOwerless to prevent you from reading tnat which
coarI viii cSaceve that mas na power as well
as the authority TO warn the Jury, as 1t does now
very propery desire ITO, to add that II Il be an In
lent 1t must be averred In the Indictment that the
Mayor knew II to be false and fraudulent, aud, so
knowing, refused TO examine, or knowing,
| falsely certified that 1t had been audited. Mr..
Stoughton briefly resumed the foregoing arguments,
and called the attention OF the Court number OF
cases and authorities. among OTHERS ArcnDold's
Criminal Pleadlngs, page AZ; - Wenaell page 279,
me People vs.. Gon; y vol N. Y. Reports, People
vs. Tyler, page 1S0.
the Court. propose to rule upon this question
now without hearing the counsel for the prosecu-
giving my reasons for my decision upon any Of the
questions whicn nave been discussed, for this gen
subsequent OF the law which the Court viii be
called upon to lake, and because cannot with pro-
prety settle Questions Oh the admssiblllty OF the
| evidence invoiving the whole subject matter OF the
Indictment, as broadly as the learned counsel has
| presented it. AS the counsel for the prosecution
mas been asked by the defence state the reasons
| Tor asking the question, will make this present
which suppose Will be made while all the effect or
the evidence Will depend on the nature OF the evil
dence ITSELF shall rule therefore, Tor the present,
| that the witness may be ASKED all that he knows
respecting this claim, the presentation OF IT, and all
he knows respecting H. down 10 the time oi the
payment of It. ana that viii embrace the ruling for
An exception to the ruling OF the Court was taken
| by the defence, which, IL was understood, should
embrace the whole extent OF the evidence now To be
| taken.
l ANDREW j.. CARNEY,
who had some time previously quietly entered the
| court ana had with fixed lace listening TO the
greater part OF the foregoing arguments, was then
again Installed the witness stand, ana was ques-
| toned as fOllOws:-
| Garvey's examination resumed-YOu stated last
nj nbf fbof
| you presented do you now recollect the nature OF
| the claim. A. Yes, sir.
U. Please answer the question that put 10 you
last night whether that calm was Just and honest
| OneY A. No, sir.
This answer produced
PROFOUND SENSATION,
] az it made apparent the previous guesses made
| that the witness, IN City Hall slang meant ito
| squeal."
| q. How was it made up9 On what foundation,
| II any, was 1t made upY A. That particular bill
| q. Yes, slrr
p Mr. Smith nhiected to the question. lie had