New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-03-26

cordinr To prc~edenCs almost inpuwerab,P. No,mnx
rrououncing tue one Iawfal s,nIence which n,
he procosdas jasaca aud called for w "%n
viii "nnspry Ds,S or UaaSnssGs
p" ,s sw sometimes crowd INTO one prosecution az
accumulation OF charges winch the utmost m r.
ne rules u OF viii allow Tne present Indictment n
its unheard Of poixiiy, IL probably suen an ,Shai
lie ,ndctment no matter what the proscculing ohcer
IS tryip do with 1t. the Judge III -,
ment cannot GO one inch beyond the brses' -, i'v a
punishment Tor one oilcnse charged. THIS ne OF law
supreme, and any sentence III violation Vi =. To- v,sh
mani for any ofsnse charged in tins ease Is nne
OF $3.50 and one years lmprlsonnenn,' az a,t"orIty
thai is Illegal accumulation unsustained Dy authotS
n the idee upon the record before nim the evidence
and the verdict had been Of tine opinion tnal tne
eo Cal mrut was due, aud had sentenced Tue ac
cnsed uuder ~ elias ofcoans % one months nprs
ouuent. each month to cegn wnen previous V.. ooid
pred tnat would have been one year IN an anu Mouu
not nave been accumulation IN any opboAiVus i,.
because sentence Tor one year might nave ", n"ts
fully pro under any one count OF CLASS U, coo
The result would have oeen tho same III nc nau ii
pronounced - sentences OF year eae ~, r,e rx
ran at the time aud expire together Al Tue
ampes Of accumulation found III the aotnoIos tnse
on - The prosecution nave taken Poe , Un he nrs
uo ana therefore have nothing 10 DO Win ZIG pi''
IH$se followed a quotation ana comment on the
aQiufged cases III Eug.3nd and TINS Country v" "'
point
TIE QUESTION OF JURISDICTION.
Jndpe Cous;ock then proceeded to discuss the qnes-
ton of jurisdiction affected by the dehai vi TUG sV
q
TO the question Of the unity of the oh'nse' ~ mas
been already observed in this paper that the DISPOSE
ton made at trial Of the right OF perenptory cna
engc and Of some other questions: assumel tnat Wy
accused trial for only one nshse' We proposo
now TO show that this theory WAS and is correct,
because more than one on5nse Is ch"lscu
than one was iound by the jury in their
general verdict. TINS proposition, If correct, Is
been fully eXpided. 1t needs no argument
to show that the sentence is IN excess OF te
conviction "a crime punishable only by in"rsonuent
an indictment for petty larceny will not justly sen
teuce for grand larceny, nor can cumulative sentences
amounting m all TO ~ years imprsoument he inflicted
where The Indictment the verdict, and the Ia" WIZ not
sanction punishment Tor more than one year. IL Is
rcIator As charged IN tue luGlctment ana
as tho were proved ana found By the verdict were IN
fact aud ia law only one oh5nse First thea ne hrs'
count OF each class describes one and the same onehse
THE INDICTMENT AGAINST TWEED.
Looking at the first of the first class. we ma
that it sets forth the statute creating the b1ard OF
Audit the duty Of the defendant to audit the accounts
mentioned in the statute the presentncnt of one OF
these accounts certain day as an occasion whcn the
duty night and ought TO have been performed and the
wful neglect of that duty That Is all Lac ncSI count
Of every subsequent class il exactly the Same III an
things except that the occasion for performing the duty
arose from the presentment OF auother account On
different day. OK in many instances on lhe same oy anu
for what We know the same hour aud mOmeGt Oi the
same day IL can DO seen al Eiaueo ,iao tuc s
the general duty OF public officer Is to perform
upon them, but his duty is divisbe into thousand or
ten thousand distinct acts. II nc negees them all Il;
| is guilty of a thousand or ten thousand criminal
oftenses. II he never performs an onii act, Ont H.
s.eaI thereof away from them entirely, or without
running away from them always refuses 10 p,rIorn,
tnem tue II Of unhrOken neglect, incapable VI
division into parts or fractions and most plainly con-
can add to the cicarness OF the proposition that he could
not be indicted aud punished cum1atively FOR thou
sand offences because he might ana ougit 10 nave per
And ve ms is Ie very point of The present case
IA iudIc
| in each OF the 80 classes, exhibits un'roAen
! neglect. The first oil these counts SHOWS neglect
TO audit particular account the next ko ne elect as
certain other account and 50 on with the 80 counts
where any statement that the accused ever audited
single account under his appointment.
Again referring to the bill OF exceptions the proof j.
thai the Board OF Audit met once, May 8, 1870 without
performing any act except the formal act OF accepting
or assuming their Official positions, and never met
stating to the jury that there never was any olheF
meeting the Board and most distinctly Affirming az
matter of law tnat sucD meeting tnere could he
no official acton. (Sre Bin Of tx options PIP 49, I'LL
2C6 34 $40 $40, 3j, 3iS 36j, ana o. Charge OF tho
Cuurt 3D. 727 73J lac OF the prosecutions there
fore both the Indictment and the evidence as well "a
according 10 the ruling OF tue Judge was one oi uhbro
ken neglect from beginnng to end Not one Official act
was performed The sa9Ject WIN pear Illustration.
Judge bound to hold ms circuits anu stea ierhs'
ms well perform his duty at Cnamners, aud If lie neg
pose that with wlIful purpose O not performing MS
official duty he travels IN foreign coIIi-
tues for two years and sails around the world
In that time he may have neglected many
Circuit and Special Terms beside nnumerahe duties At
/
setting forth some particular act when ms9t nave
been performed and the jury as well might dad een-
y+ars imprisonment, each year TO commence when the
utvIous year mad expired. Is not Liat the rne Of law
or suppose tuat the judge goes TO his Circuit and
opens MS court a. required % as appointment; II ne
/ fails 40 without gOoi reason, IT is "iilini
neglect Of dpy ca ana bs tTl lsaene ;r 81 Blt
nciter cases ana wlully adjourns when half dozen
lawyers Dim 10 try tAer cases, also ready on Dotn
sides J. guy OF a. MANY criminal ohenses as there
l. ma ON Il ~ .I 4
he had opened his court at ALI 50 Of the Special
Term. II the Judge wiuiy ncg.ecis 70 hod H. II ne
il he guilty OF more than single mi-demranori o.
adtintus AT noon ami sails down the bay ne
noon, leaving 81 attorneys VINO are waiting 10 make
| Inrir motions are the ohenses indefinitely multiplied
because there indefinite humber vi motions PIE
ing To neardl tAuncriles We're mere eited as bear
| lug upon tnis question:
ONLY ONE OFFENSE CHARGED.
The act Of April &c, $780, proessed To impose the
defendant ia this Case the duty OF auditing certain
class OF accounts This duty may ne divsble into as
many fractions, parts IA there were accounts pre-
sented for audit. While wlu neglect respect TO
o. these minute fractions may be quite sufficient to
make out the ofense imputed, yet all the frlcons Ony
make tie unit OF Official dut' ana wiiul neglect III re-
spect TO them All only constitute the single oense OF
citing that duty Between TINS CONCLUSION and the
opposite one, mat public officer is guilty of many
separate Oenses as tnere are particular duties pertain
Ing to his office which he fails 10 perform, there is no
middle ground. The next step is 10 identity
all the supposed ohenses set both in the
second ana COuuts VI Win iHo
SINGLE ofense set in all the first counts. This
auIres little space These counts are all for neglect
to au precisely the same claims on accounts as III the
first counts. Take, for example the second and third
counts the first class. IIey set forth the same duty
as the fret count or that Cla-sthe pTesentment OF ac
same account which very exactly identified IN all the
counts Of any class by It's date sums "a items, such
also being made al the same time us IN the
first Tue conclusion OF the three counts is also
The same TO wit that defendant williully neglected
to audit the said claim. Such also was the theory OF the
Trial and OF the sentence The Judge explicitly hell
that AL the counts OF any one class showed only
one ofiense and by that standard he measured out
the punishment. (See proceedings after verdict and
sentence on the judgment rohJ Having shown in the
preceding discussion that all the first counts IN the
various classes only off OF wifu neg