The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-06-10

criminal violation OF the law. The law in this re-
common law for many years has settled, that il
any public ocer wlliully refuses TO discharge the
duties OF ms ounce ne Is guilty OF misdemeanor."
guilty. The law stood In this way under the act
oil 1871 and under the general statutes Of the state
until the present month, when II seems an act
went into effect, taking away portion OF the
powers OF The Commissioners, and vesing It In the
has been relied upon IN part by the defence in this
case. in which repeal OF the provisions OF the
defendants are exonerated from the consequence
81 their failure TO comply with Its provisions.
When this proposition was first made BY the coun::
sci for defendants 1t struck me being entitled
10 very great attention, but then ] saw that
there was no count In the indictment char0-
Ing the defendants with crime at common law.
the charges being entirely predicated upon the
statutory provisions oil 1871 Tue question comes
up upon enc proof as to whelhe the evidence is
OF sucn character as to satisfy your minds that
they have violated the duty imposed upon
wlliHiy violated this duty, and that q crime has
been committed upon their part OF twofcld char
acter. First-rhat they have been guilty OF en- err
Ing into conspiracy concern lng the manner in
which they should discharge their duty. and that
That they combined to wliully reuse and neglect
to perform the duty imposed upon them by the
statute OIL 1871, and that this wiliu refusal not
confined to a single transaction but was repeated
as set forth IN the indictment. The law does not
aow cne 70 ecu 70 aege multitude q
the exception OF the counts Tor o conspiracy, the
prosecutor is limited IN his evidence and claim
conviction. AS to the conspiracy, that Is difficult
because II
THESE PERSONS ENTERED INTO CRIMINAL CON-
SPIRACY
at the time they entered upon the duties OF their
office, that they would not advertise. and alter
wards carried 1t out or, as the statute defines it.
III two or more persons c0nspre to commit an
offence and then per i0rm some act In the way OF
the commission Of this offence. they shall be guilty
al misdemeanor." 1t is not only necessary that
there should be a criminal understanding but some
act performed by them or the purpose q carrying
that agreement INTO effect. The question arises
whether the prosecution have established the
guilt OF the defendants under the provision OF the
be aware or the provision imposing q duty all
that Is necessary Is that he shall design and m
tend 70 perform the act which the law has made
IS NECESSARY THAT CRIMINAL INTENT SHALL BE
but where the intent Is Established so as to leave
no reasonable doubt that the act Is of q criminal
character. Hence in this case 1t Is not essential
order to see the criminal liability Of the DEFEND
ants In tnls case. that they should nave been &C
qualnted with the provisions OF the act OF 1871.
the laws OF the country cannot be maintained by
individuals Tor the commission Of criminal acts by
reason. OF their ignorance OF the law. They are
be acquainted with the laws relative to their
functions and prescribing their duties, that they
take upon themselves. 1t is assumed tnat they
VIII discharge the duties which they assume to
Sae pest 81 she1r ABILITY TO the ts wo the
acquaint themselves with the provisions OF the
law. so IN this case 1t Is not an element in con-
sideraton whether these men knew OF the pro-
visions OF the act OF 1871 or not, but the simple
question Tor your consideration Is under the other
counts OF the Indictment charging conspiracy
whether
THEY DESIGNED TO COMMIT THE ACT
or wilully refused or neglected to do that which
the law required them TO do Did the COmmisslon-
ers wllful neglect to advertiser II they did then
they have violated the provisions o.! the law and
they are guilty, and matter whether their guilt
may be serious or trfing to the public interest 1t
cause tine law is that the public's oficers should
not wfully neglect to perform form. the duties
for the excuse that the result did not ln
fct serious injury on the public. 1t was claimed on
the part of the prosecution and very properly so,
that the commissioners did in substance direct
the articles mentioned IN the indictment to be
purchased and that they received the articles and
was SHOWN that there was no resolution on their
minutes oy when the Supply Committee were re-
to Ssss arse S Se ss ss' ~
which It IS claimed that there was vii
inl neglect OF duty on the part Of
In addition to that evidence was produced to show
motive on the part ol the commissioners and an
ers themselves had prohted by the neglect OF their
duty, aud the evidence left the in tine shape
Counsel Tor defence MADE various requests 10
charge, some OF which Judge Daniels complied
with and others he rejected.
rhe jury retired shortly before twelve O'Clock
and at about four O'Clock rendered q
VERDICT
convicting Commissioners Ferguson, Powell and
Wills OF conspiracy to deiraud the county, and
acguitting Commissioner Jonn Cunningham.
Mr.. Tracy. Tor the defence, moved ior an arrest
Of Judgment, and the argument was postponed.
The convicted Commissioners were released on
bail pending the decision.
The verdict did not create surprise, as it was
generally expected that at least the three CON-
missoners would be convicted, Cunnngham's
acqulttal Is attributed his testimony that he had
endeavOred to reform the abuses IN the depart
menr when he entered upon his office, but was
voted down by other members ol the Board.
The Badeau Cnse.
The case OF ex-Collector OF Taxes Isaac Badeau,
indicted on charges Of forging and embezzling
city moneys, was called after the jury in the case
OF tine Commissioners OF Charity had gone out
Counsel for defence presented af1davits OF physi.
clans setting forth that Mr.. Badeau was seriously
Ill and tnat his attendance in conrt would endan-
ger his liie Counsel SAID that there was an ar.
rangement with previous District Attorney, who
had mad the case IN hand. that the trial not TO
Mr.. joshua nj. Van Cott who appeared for the
people, denied that there had been any sucn I'M
Outstanding, and suggested That in the Indictment
for forgery There was no necessity Tor the cOntnu.
GUS presence OF the defendant. That case might
be tried without his presence. MI. Van Colt con-
tInued:-The Indictment IN this case Is Tor q gross
misuse OF the public moneys and we will be en-
abled under IT TO show that Mr.. Badeau had
money, appropriating the same to his own use.
We are III possession OF his account and check
book, all OF which show conclnslvey at what times
and at what banks ne made deposits OF the public
moneys and appropriated the interests thereon to
his own use. We can therefore proceed with the
case, requiring only the formal appearance or MIR.
Badeau represented as he is by counsel. | do not
think thas his interests will suffer in the least and
! ask the Court respectfully to allow the case TO
proceed.
Counsel for defence, Colonel Fellows and
Chauncey Shader, protested against proceeding to
trial in view or MI. Badeau'S condition.
Judge Daniels said ne would send physician
down ~ see Mr.. Badeau and nave the physician
report his condition that afternoon. physician
was sent and subsequently reported that MIR.
Badeau's condition was such that he could not ap-
pear IN a week.
Judge Daniels thereupon adjourned the case tor
the term.
The sprague Case.
The case Of ex-Cty Treasurer Sprague, indicted
for misieasance IN once, was called. Counsel for
defence interposed plea OF former acquittal as a
bar to further prosecution. The argument was
postponed until to-day.