New-York tribune., 1873-01-15
THE TWEED TRIAL.
A SERIES OF OBJECTIONS ovERRuLED.

SUCH OFFICER AS AUDITOR.
Proceedings in the Tweed case, yesterday,
were begun with vgor but hardly had single quesuon
been put 10 the only witness yet caned Klenaru
when Mr. Field jumped TO his feet and opjec'eu 70 @
,sso, NJ any evidence until IL first proved thst
Mr. Tweed had been in the position OF public omeer as
alleged in the Indictment He .hen proceeded to state MS
obiections based upon alleged unconsttuuon"l'' Va
the law appointing the Board oil Audlvorsi that '''
was no such Office such oi1cer ma, tneieioio "o
neglect This was ably answered by Mr. Irenain auu
after some discussion the objections were all overrued
by Judge Davis. Mr. stoirs VIII Pio0"0' D0 i''""'"
this morning
After the polling Of the jury Mr.. TremaIn called the
attention of the Court TO the fact that certain newspa
pers had alleged that the action of Mr. Phelps in asking
for an adjournment the previous day had been for
the purpose OF taking for the removal from the
Jury OF one of its members who had been connected
with the Americus Club He deemed 1t due 10 that gen
tleman and to the for the prosecution to state
that their consultation had reference TO any such
matter.
Richard A. storrs was called to the witness stand but
before any questions asked, Mr. Field again re-
newed his motion that the prosecution should name the
counts upon which the defendant was 10 be tried
Judge Davis stated that he would entertain such a
motion after the testimony for the prosecution mad
been gwen. MI stos was asked his position, and an
swered that he was assistant in the Controllers office
Mr. Field again jumped TO his feet and said that as the
defendant was charged with neglect and perversion OF
public trust no evidence should be taken any sub
ect before his official position was shown He said IN
part
We are prepared deny that the defendant ever held
any such position as is stated in the Indictment You
remember the charge in the indictment, alleging that at
the time mentioned these three gentlemen entered upon
and assumed the duties auditors, and that as such
officers and holding a public trust, they bound
init hat IA fhp
OF all the counts II he had no official duty there IS
nothing inthe indictment That being the first question:
we desire that the attention Of counsel shall be directed
to H. and they must first establish the Official position OF
the defendant Ths is means OF shortening me case en- II
IL be true, think satisfy the Court that inc
defendant is and never had any office under TINS
section either de JTs or de Jdo' Ihat Is the foundation
OF the case They may offer the statute. Then we VIII
Peckbam stated that he offered that statute in evil
Mr Fied-We object This statute. Chapter 3s2 Of the
Laws OF 1870 was passed III Apll slO threetns pelng
that there is the statute book what purports TO be
blank and stricken out. being beyond the power OF
the Legislature 10 pass OF TO give any olcai position
under 1t.
Mr. Field here stated. at great length various ohjec
tons to this statute which referred to below, based
upon its unconstitutonay, and concluded his argu-
ment as follows:
We take the ground that the defendant is not liable
under the indictment No man can be an ocer de lgeo
under an invalid law. You cannot make him unless
there is Office which he could hod We insist thst
TINS act n Is 81 also oa WGa GGn in s%oS o te s Wien @
have thus mpertecty tried 10 set forthi The defend
ant indicted Tor official derection. The foundation OF
the charge is that he held public ofhce under the laws
of this State. We gappe with the question at the out
set. We say be held no public Office under the laws
of this State and therefore whatever cupaby youean
mpute him, If he be guilty you must ind some other
this law, because he was not public officer. We say
that that section OF the act of 1870 futile IL
so much wastepaper. There was no such office lie was
not appointed TO such Office. He is not arceable
crminay for not having tqhlled that office or Tor hay
ing msbehaved himself IN that ONCE lie is neither an
officer de jtTe nor de Jdci0'
Mr.. TREMAtN's CoUSTERARGUMRNT.
Mt Treman replied in part that the act conferred GER
tain powers the present President OF the Board Of
Supervisors The office of Supervisor did not exist when
the Constitution Of ls4G adopted By the act Of 1851
the defendant was elected Supervisor OF his func
tons was audit and the act of 1870 tells him TO
auditing and unites other persons with him. The de-
provision for the payment of the claims and IS
charged merely with not auditing, but with corrupt
peryerson of the duties Of the Office and he says he is
responsible. The doctrine Of esoppel applied pec1
larly in this case The public made him an oli9er ae
question the authority OF his appointment AS wei
might shera te as Coar, houT judgment rs 10
authority under which he acted. How long would such
defense avail in any court in Christendom
THIS was attempt 10 create tribunal unknown
Constitution, establish debt not admitted
by the officers but simply of ascertaning the
amount of existing debt. II the defendant
quilted by direction OF the court the people would nave
no appeal in the decision was incorrect.
FIELDS REJoINDER.
Nj. Field said in part, that his learned friend
tented himself with saying 1t not so. He wished his
friend had given reasons The defense objected to the
act act and they objected to its being read in
evidence. There was other proof Of the appoint
nent. II the defendant taken one dollar from the
10 gve it could he recovered; but 20 charge him with
breach Of official duty the office must first be estao-
lshed As the argument that the act merely imposed
additional duties officer the defendant ceased 10
be Supervisor first Monday of July 1870 yet they
were asked try HIM for not doing his Auditor
in June July, and August OF that year II 4 was an az
pontment 20 Office, the defendant could stll audit,
provided be could get hold of Connolly and have the
Mayor present a - - r.1T q.
THE OBJECTIONS ovraEr1rp. 80
Jndge Davis in giving his decision, said, IN part that
the objections ably gued raised most serious doubts
If man is called upon 10 perform duty which does
not devolve upon him by law, 1t is perfect defense,
civly and crimnay If he shows that the law does not
impose the duty; but it is another question if officer
enters upon the performance OF duty and violates the
obi cations imposed on him. 10 the injury OF third per-
prosecuted crmnaly for violations Of the law 10 say
that he Mt bound to perform the duties The ndic
ent charges only gect but violations OF assumed
duties 1t would be enough TO show that defendant
willfuIy intended TO do what the law denounces as
crime, 10 show that he an officer de JdctO
First As 10 the point that the act pursuant TO the
bill of Rights OF the Constitution required twO-thrds
vote that is pedcated the idea OF its approprating
public money fr local and private purposes 1t appears
primG Jace that it not passed by twohird major
ity. that statute creates presumption on which
on OF the Act OF within the provisions Of the
Constitution. He thought it was not within the true
ignidcaton OF appropriation OF public moneys for local
or private purposes. BE at liberty hold that
this was bin approprating public money for local or
private purposes whiting the meaning OF the provisions
Of the Constitution. Even If 1t TO be regarded
appropriation Of public money for local purposes, y
doe follow that the previous auditing should fail,
and therefore, the sections obnoxious that
provision.
The second objection Is that contravenes the seventh
section OF the third article of the Constitution, which
provides of the Legislature shall
cyil appointment during the term for which he
elected, the hands of Legislature he
member, sautary and wise provision whics ought to
be enforced by the Courts he we're OF opinion that
the section did create officer within the meaning
OF the provision, he would not hesitate TO state but
il was different thing 20 separate the duties Of
listing Office and Impose other oftcers in