The New York herald., 1872-12-04

two persons SO seriously charged and whose lber-
present, public curiosity and interest were all
enlisted in the case Of Tweed. The Knights OF the
as tSe sos mss ns IS big Sns and
where the carcass is, there win the vultures be
gathered together; and, sure enough, from the
gentleman in the big wig to the yet unripe Bart
lettn that read preliminary paper or two, the
counsel for Tweed were all on hand. The prose-
ney sullivan, were also on hand and when Mr..
Spark, Clerk OF the Court, cried 0ut:-"Gentlemen,
time, go on, " counsel with the big wig went on at
half cock, as usual, but as preliminary.
Mr.. sullivan rose and said he had in his hand an
Indictment 1.-THE book indictment filed in October
last, and now moved that
Mr.. WILLIAM N. TWEED BE ARRAIGNED UPON IT.
Counsel, after an allusion to an excitement
which, he said, he had seen among the counsel for
the prosecution, said they had resolved to move to
quash the INDICTMENT. He would first read the
affidavit OF Mr.. Tweed The anidavit recites the
chronology oil the indictment and states, from the
minutes OF the Grand Jury, that il is entered there
aa signing bills knowing them to he frauds; that
wheeler II. Peckham was present in the Grand
Jury room. Counsel here alluded to the fact that
private counsel were permitted to come in. and
that Mr.. Tweed's case was not lett, as usual, en-
trely to the District Attorney. The adavit further
stated that the fact had been stated before Judge
Brady on the 10th OF October, and had not been
denied, that there were two indictments found
by that Grand Jury, one on the 9th, the other on
the 10Th OF October last, the latter intended to
cure vice IN the former Indictment. That on this
last the persons named as witnesses were not all
examined. The vice in this former Indictment was
the presence OF an unauthorized person in the
made after Judge Bradys remarks on the 10th in
regard to IT, Mr. Tweed's AFFIDAVIT continues that
Identical with those found on the 18th Phe evil
dence on which the latter indictment was found
was simply . reaffrmation by five Of the seven
counts OF the then previous testimony elected by
Mr.. Peckham IL charges In addition that the orig
inal Indictment was made "on complaint Of
Wheeler H. Peckham,n but that, in Mr.. Peckhams
place, the second set OF indictments substitutes
fictitious John Brown, SO as to shield Mr.. Peckham.
He says further, that he has never had the advan-
no n m AO1g
Mr.. Bartlett then read an affdavit OF Mr.. Dewey
as to the contents OF the Grand Jury minutes.
Mr. Peckham SAID that most Of the facts stated in
Mr.. Tweed'e afidavit were not denied, but in an
afidayt in reply to some points in it. In it he re-
cites the trial of Mayor all last Spring After its
TO
which should avoid the difficulties found in the Hall
trial That at the request OF the Attorney General
Grand Jury, and examined witnesses before them.
ent he aS5 S55K ags Is gaye them Hs @
tatiOns, but that afterwards, hearing some Ques-
sions objections tn9 wh6S matter be acted on MY Sy
quainted with Mr.. Tweed and had no relations
with him except in these suits.
At this point long argument ensued between
counsel as to the advisabity OF newspaper publica
tiOns in evidence, and the reasons OF the defence
for introducing such line OF argument, Justice In
graham ultimately reserving the decision OF the
question until he has had further time for cOnsid
GRAFTON.
claiming that 1t was not denied that John Brown
was mere fgment of the BRAIN got up to cover
and hide criminal proceeding on the part Of the
that half or two-thirds OF the indictment was not
sustained by any evidence. The Grand Jury was q
substantive protection to the accused. The state
and United states constitutions had affirmed the
right. But 1t was said that the action Of the Grand
Jury was Irresponsible He would rather be at the
mercy OF King and Scannel, to-day brought
before the Court, than at the mercy
OF those who would assert such q doc
trine. The Indictment could not be presented to
the Court until signed by the District Attorneys it
was misdemeanOr to reveal the names OF those
indicted to any one hut the District Attorney till the
party accused was under arrest So Mr.. Peckham,
when he sent in these indictments, was guilty OF
misdemeanor. But he claimed that Mr.. Peckham
there was any evidence; he was hired to prepare
them months before II was empaneled. He went
not yet found-and he says in his afidavit ne did
explain it to them; that is, he instructed them.
But where was Mr.. Garvin's affidavit as to what
took place between him and the Grand Jury
His associate, Mr.. Fullerton suggested to him to
say that II Mr.. Peckham was by the appointment
vice, then he should have taken an oath Of ONCE
II the Court had any doubt 1t could subpoena the
at son some length from an old English book as to the
secrets which grand Jurors were not allowed to
reveal, and continued:-But If the motion were
denied in whole, at least the counts relating to
transactions with Ingers0ll, Mob. Davidson and
others should be stricken out, as no evidence was
dictments But as to the substance OF the lndict-
ment itself he claimed IT was vicious. There were
two sets OF counts. Some forty. of them were
| founded on vouchers still existing. Some one
hundred and eighty on vouchers alleged to be lost
or destroyed by burglary. On each voucher lost
of the four was for n neglect by Mr.. Tweed, Mr..
Hall and Mr. Connolly to audit The second count
WAS or 70 an9 ne Sc Ha OF claim which
uent and fictitious The third count charges that
partly false and fraudulent claim, known to them
hn fol nn11 tNu that tns0
in the second count, was wilful neglect to audit.
In each they attempted to turn an Affirmative into
ahes ss In Sat the Or
the Others had wilfuly made a certificate on
which money, was falsely drawn from the city.
participator in this certificate on which he
drew the pay Thus, in their eagerness they had
combined a charge of larceny with charge OF mis-
demeanor. Non-feassnce was the non performance
Of an act positively enjoined by law and must be
wilnl and intentional; malfeasance, the doing OF
pearance OF doing an act without doing it. Under
the Board Of Audit act the Court would see that
distinct acts. The statute did not say how they
were to audit. They could adopt the mode Of audit
accepted in Mayor Hals case an erroneous de-
dniuon Of the term, term ,audlt'lviz., examine
OF the kind. II the Legislature meant to prescribe
an examination OF any specific kind on this Board
they would have said so. But this Indictment
charged two crimes entirely distnct-the violation
OF judicial duty, auditing, and the violation OF a
ministerial duty certifying-in each Of the counts
Besides the counts charged positive act Of mis-
feasance, and then resolved it into simple non.act
But the second, third and fourth counts were bad,
because in them the Comptroller was declared to
be party to the guilty audit and to have paid on
such guilty audit He should submit that the in
dictment could only be maintained on the ground
that Connolly innocently paid these vouchers. He
went further than the indictment-if these
three men issued these three certificates they
made false token and were forgers. And So
in their efforts to get in this payment, they
had buried the head OF their Indictment in q
cloud of felony But, besides, it did not say that
Mr.. Connolly paid the money out OF the county
his pocket. The indictment was therefore void for
indefniteness The Court could presume nothing
except in favor OF Innocence. The third count
ing claim partially false. but Ii did not show
wherever it was false. Was that sufficient cer-
taintyf He quoted cases TO show in what way the