New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-07-18

| IOrm VI mIeOemeauOr, YET IL 10 aRalne
him as Auditor Of the State, charging hin
with misconduct in Office. The people 0
the State, whose representatives you are
demand that it Ee is guilty he shall be pun
ished, and if he is innocent of the charg
that he be acquitted. The accused has beel
fairly tried in SO far as the power
of tho court are concerned, and now. gen
tlemen, by your verdict you are to de
| termine the result of that trial. ! believ
that you will be guided by your oaths, an,
that your conclusion will De in full accor,
with your conscience and your judgment
| Do not be hasty in your deliberations; le
not your confinement hasten your verdict
Carefully review tho evidence. apply tn,
law, and then. fearless]y, express your con
| clusion. The accusation against the accused
! is based upon section 81 of the Revised
Statutes Of 1870, which reads as follows:
Should the Auditor knowingly issue any
| warrant upon the Treasurer not authorized
! by law. or should he xilfully neglect Of
refuse to perform any duty enioined by
| law, or be guilty of any oppression or eX
tortion, or receive any fee OF reward fol
| the performance Of any duty not allowed
by law, OF should he by color Of his office
knowingly do any act not authorized, or in
any other manner than is required bJ law
OF illegally use or misapply any money be-
longing to the State, he shall be deemed
guilty OF misdemeanOr in office. and upon
conviction be fined not more than $1,000
and imprisoned not more than five years.
and be dismissed from Office"
is technically and legally ter ned "mis-
demeanor," and the punishment. as you
have heard, is by fine or imprisonment. or
both, at tie discretion OF the court, and dis
missal from office.
The word Misdemeanor, in The ordinary
acceptation, is applied to all those crimes.
whether Of commission or omission for
which the law has not provided a particular
name. Many Ofeuses also are BY statute
punishable as misdemeanor ca aon,iae. The
term. indeed. comprehends every crime less
than felony, and is generally used in coz
tradistinctiOn to felony.
From the reading Of the statute quoted
you will perceive that several points are
necessary to constitute tho offense; these
must be shown affifmatiyely by the State,
and all are necessary before you can con-
yict These points, or ingredients, are all
set forth in the information, and you must
be satisfied that the State has proved them
to be true. The accused is charged First,
with knowingly issuing warrant, not au-
thorized by law, on the Treasurer Of the
for the sum of e34 800, contrary to the laws
of the State"; and second. that he Gid.
knowingly. ''audit. settle and warrant on
the treasury a claim OF one George G. Ben
ham against the State for tho cum Of
$34, 500, not authorized or warranted by
law"
The accused ie, therefore, tried on two
counts, and you will have to pass upon
both, pronouncins his guilt or innocence
sequence that if the accused be guilty Of
the first count, he is also guilty of the sec
ond, and vice versa; if he is innocent,
though you can, If the evidence justifes it,
convict him on the one count and acquit
him on the other, you must be satisfied
that the accused knowingly issued war
rant to George c.. Benham contrary to
law.
Judge Braughn then laid down his manu-
script and continued in substance that if
the jury belle yed the Auditor in person had
at any time issued warrants knowing
the claims were fraudulent. or knowing
they were epjoined. he was guilty. The
Auditor must possess this knowledge. If
he knew the vouchers of George G. Ben
ham were fraudulent, either in law or
originally or by being enjoined by .
court Of competent jurisdic ton, then.
by issuing warrants for them. he be-
came guilty. If on the other hand
notwithstanding the Injunction, there was
nothing ON the face of the vouchers to
stamp them as fraudulent, and, finally. that
he had no knowledge Of any fraud. you
must acqnit him. There has been some lati-
tude in the case. Tho State has been al
lowed to show tho generality of knowledge
existing, and also the duty of the Auditor
to scrutinize the vouchers. He then re-
viewed the two counts, and instructed
them they were substantially the same. SO
far as the proof Of the State was required.
The usual directions as to the manner Of
the different findings were given
The jury were the sole judges Of the fact
It was not permitted the judge to COM
nent on them. The law they were TO take
from him. From the evidence and the law
The jury must make up the verdict. The
ury had the power to disregar both, but
,ad neither legal nor moral right TO do so.
They were not to substitute facts nor make
aw. They might ask additional instruc-
ion, and if they found accused guilty re-
commend him to mercy. Courts we're al,
Ways attentive to such recommendations.
rhe penalty of removal from Office the jury
lad nothing TO do with. The question
the State and the accused has
'een tried fairly, and is now to be
lecided by twelve men. Trust on your
onsciences and your oashs. If you con-
nd fv t1,o tyar
ut regard to interest; if innocent. let no
ear of opinion prevent you from declaring
J. The best armor of all men is the knowl- |
dge of having done right. Keep your
stbs, rely on your consciences, decide the |
sse solely on the law and the evidence,
nd you will do your duty.
District Attorney McPhelin asked that |
,e jury be charged that if the opinion of
,e Assistant Attorney General was illegal.
was no excuse. J
Judge Braughn-f do so charge. |
Mr.. Semmes aeked that the court charge
lat if the Auditor believed the consent and
lvics of the Assistant Attorney General
as sufficient, he was not guilty.
District Attorney McPhelin asked that
10 court rule the advice did not relieve
m.
Judge Brauehn-Ths charge asked for
,es little too far. Twill charge this: If
70 Injunction, q matter of evidence in
,ut recollection, prohibited the Auditor
om warranting the claim Of George C.
snham for s34 500, and the Auditor had
,owledge of this, and then requested the
inion of the Assistant Attorney General,
d did 90 in good faith, he had the right to
lieva tha opinion, It 10 Q pattet tor the