The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-02-14
BROOKLYN COURTS.
UNITED STATES CIRCUIT coua1-cHAwseas.

derwerken-The Defendants Dema nd
Ing to Know the Specific Charges
Against The neutrality-suspicious. Insin-
uHtions Against tho Treasury Depart-
ment-The District Attorney Fails to
Secure the Records in the Casc-In-
terosting Proceedings Yesterday.
Before Judge Benedict.
Judge Benedict sat In Chambers yesterday morn
ing to hear the arguments on the motion OF the
counsel for the defence in the of sanborn Haw
ley and Vanderwerken for bill OF particulars OF the
indictment. MIR. B. F. Tracy made the notion and
District Attorney Tenney opposed. Messrs. La
ROGUE and Buchanan also appeared as counsel for
Sanborn and Hawley.
Mr.. Tracy submitted the af1davlt Of Wander
werken claiming that bill of particulars was
necessary In order to enable him to know tho spe:
ciHo charges against him and to prepare the de-
fence. MT. Tracy said he would not make any ar.
gument.
Mr.. Tenney said that he was ready to 20 into an
argument. The af1ldavit presented here was en-
tirely general in It's nature. 1t asked for nothing
that he was able to discover but matters Of EVIL
dence, which, OF course, was not proper. In the
first place he made objection to the az
fdavit. that, II they desired to submit
the case upon the pleadings upon the
indictment, they should have made their af1davit
more specific and not so general. 1t demanded
nothing but simply transactions, overt acts and
the means OF prOof-that Is. the papers which are
in this case. MIR. Tenney took the position that
under the common law the defendants, in mat
ter OF conspiracy, are not entitled to bill OF par
tlculars. AS he had previously stated, bill OF par.
ticulars was no surprise at all to him. lie knew
that in England they had been granted for a long
time. This indictment had been found by
the Grand Jury, and the District Attorney
but what the Grand Jury had placed
Bin Of x to 1s nanS S the District
Attorney and not OF the Grand Jury. Further
MOI g. bill OF particulars limited the prosecution.
You could not go outside Of bill OF particulars.
Now then, In this case, these defendants were
charged with conspil acy TO defraud the govern
prosecution had right go into all the overt acts
that were committed under that conspiracy. and
m to biz Of
az on ana The S nsdsT say %h
found but two cases where in conspiracy, bills OF
particulars were granted. The first case was found
COx's Criminal Cases. In each OF these cases, n
his memory served him Alright, the several de-
PENDANTS were accused of being delrauders. The
indictment, however, failed to specify the indi-
viduas that had been defrauded, but 1t set forth
this Indictment against sanDorn and Others the
prosecution alleged that the government had been
deIrauded; that the defendants entered into
conspiracy to deiiaud the government, ana the
means by which that conspiracy had been carried
out was matter OF proof LOT the trial on which
spiracy was the offence; the overt acts were
nothing more nor less than an aggravatiOn OF that
offence. Again. conspiracy was nothing more nor
less than misdemeanor, and it was perfectly wei
established that an indictment drawn for misde.
meanor when 1t was laid in the words OF the statute
was sufficient, and IL the defendants or their cOun
sci would examine every count OF this Indictment
they would see that il was drawn In the language
of the statute.
Judge Benedict said that q bill OF particulars was
allowed when the Indictment did not give informa-
ton IS to lie had heard the cues
English cases. and he could see no earthly reason
why, when an Indictment did not give Information
ticulars should not he given. He had not read
this indictment; he supposed it was the general
not giving Information OF the TRANSACTIONS Into
which the prosecution were going to INQUIRE.
Mr.: Tenney said that this Indictment alleged
fraud the government out Of large amounts Of
money, and that they entered into this conspiracy
under contract made with the Secretary OF the
Treasury. 1t went into particulars, stating pre-
cisely how the thing was done. IL alleged overt
torness q the defendants to produce case in
the books where an Indictment OF conspiracy
was 30 definite and 80 SPECIFIC as the one 10 tins
not obliged to set out the means employed-that
the conspiracy was carried out by means OF writ
the specific means, and that was question OF
proof Ali this was under the first count for con-
SPECIFIC transactions in this case. He said here he
was willing to give these specific transactions.
Mr.. Tracy-That's all We ask.
Mr.. Tenney-It Is due to me and my once to say
that in our Indictment we have been as specific as
we possibly could be- We have alleged Ia the In
when we have not been obliged to alege one single
overt act 1t is perfectly we'll held that the means
y and ne IN R0
mens.
Judge Benedict-Is your indictment for con-
sptracy to defraud or commit an offence, or b0thf
Mr.. Tenney-TO defraud the government and
commit an offence. The fraud itself is an offence.
The indictment is drawn under the conspiracy
20, $685. The defence ask US to furnish bll Of
particular transactions. We have set forth three
particular transactions and those are overt acts.
Mt. Tracy-lf those are all you rely upon, then,
that is all that Is necessary to be said. The coun.
sci has got three counts in which be aoes set out
want any iniormation-we know what they are.
Judge Benedict Go the District Attorney)-Are
those the ones you are going M d intSs
MI. TracywWe want 20 know upon what par.
TSs second and fourth counts are sSecnc enough
on the question OF the transactions. They allege
the overt act, the presentation OF certain ifaudu-
tthe District Attorney what papers he is going to
aiieee were false and fraudulent. so that We shall
count is entirely indefinite and uncertain.
Mr.. Tenney-what do you say about the Hfth
countS
Mr. Tracy--I don't consider 1t worth answering.
Judge Benedict ITO the District Attorney)-You
intend, on the trial to hold the defendants under
the first count as well as under the second, third
and i0urth--you have a general count, and have
made your transactions In the second, third and
fourth speciGcf
Mr.. Tenney-Yes sir. We rely upon every count
In this Indictment We propose TO avail ourselves
OF every particle of law there Is the case, and
every particle OF transaction.
Judge Benedict checking him)-One moment
You have not answered the question. asked you
II you intended to prove under the nrst count any
transaction which was not set out, mentioned In
the second, third and fourth
Mr.. Tenney-Most assurediy do.
Judge Benedict-Then, why don't you give them
notice OF what that transaction Isl
Mr.. Tenney-Because 1t Is not necessary and the
law does not require IT.
Judge Bcnedc.-Your way Is to give them o bill
or particulars OF That hrst count, and you may
give II as fully or meagrey as you please. That Is
the way In the southern District, and the object Of
IL is that while they know what TRANSACTION you
are going at, you are not bound to give them evil
denoe or the specific iscts. IL you give them q bill
OF particulars which shows them what transac-
tlon you intend to prove under the nrst count,
then that is all shall order,
hA-A