The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-07-03
THE NEW INDICTMENTS AGAINST
TWEED SUSTAINED

him with conspiracy the other with Iase pretences
have already been given In the HERALD. as also
the argument made before Judge brady on a mo-
ZION TO quash taem. Judge Brady gave. yesterday,
his decision in the case denying the motion. The
grounds or his decision will be found In mis- written
opinion, gwen July below
The Indictment designated A. December Is,
1871, In the tabular statement was superseded by
Indictment OF February 20, 1873, designated In
tnaL statement "a fourteen. This IS conceded. Ii
Is also conceded that IL Is included In the omnl-
bus" or "Dig Indictment" so called from the num-
Der OF its counts and consequent puik The In
dlctment designated Nj, October IL, 1872,
superseded by Indictment OF February 20, 1873,
designated by the NUMBER fifteen. This IS
coed. IL Is also conceded that fifteen Is incuued
IN the OMNIBUS Indictment. These indictments
contain charges. " would seem, under what Is
called the Mock Auction act. II Is also conceded,
as understand IL, that the Indictment designated
Y, June 10, 1876, Is also included Ia the omnibus
Indictment l accept these concessions aud
acting upon them drew the legal conclusion thar
they ought TO be abandoned, but do not under
stand II to be the practice or the criminal courts
10 anticipate In that way the plea or IA previous
conviction or trial the old plea or autre lois
Wet. Inc defendant Is lett TO that defence The
Court can suggest that II the concession mean
that the subject OF any oil the indictments was
presented tor consideration on former trial ana
judgment awarded upon 1t the defendant
ought not to be again put in jeopardy.
1t Is an unnecessary waste or the public ume and
provokes an unnecessary expense. When an in
dictment Is superseded by one subsequently, found
trial the plea mentioned Is the course prescribed
Dy the rule and Is perfect answer n sus tained.
TAe5e OBSERVATIONS In relation TO the plea apply to
all the other indictments for misdemeanors not
admitted to have been the subject OF a previous
trial II the matter embraced nave been before tried
and disposed OF IN any way. AS To these, how
ever, and indeed as To all those Ior misdemeanor,
understand Inc defendants counsel to maintain
tRaJ the defendant having been already punished
Tor vocation OF his duty in respect
10 certain warrants and as auditor cannot
In reference TO any of the warrants alleged to
have been presented to or to have been before
him, even though not Included IN the omnibus in
dlctment be again punished; that there was but
a 10 n.
ment. This proposition which was argued In the
COURT o. Appeals in Inc People ex rel. Tweed vs..
Liscomb, but not PASSED upon, cannot be enter
tained on motion to quash. 1t neither relates
to the for IN nor the substance OF the Indictment
be presented on an1davits 1t must be said that It
is tue subject Of plea OF former conviction and
subject, these modes or proceeding are entirely
distinct and different. One involves q trial and
the other does not. II Is further claimed by the
defendants counsel that the Indictments found
In June, 1879, should be quashed, because not pre-
fence, and because tho Legislature could not en-
large the time for hndln2 indictments from three
10 nVe years IN respect TO previous offences. No
to, and THINK none can be found. II the enlarge
ment took place alter the expiration or the three
years. there Is. perhaps. little dornt that sucn
legislation would be detective; but in rcisrence
the offences charged, 1t appears that the
the statute. The subject was then entirely
within the control OF the Legislature Its action
Is not exposed to the objection that IL was In vo-
latlon OF any constitutional prohibition 1t Is also
said by the DEFENDANTS counsel that the tndict-
ments for misae neanor ana forgery In the third
degree and relating TO the asserted claims OF
Mcbride, Davidson d Co. and q. ID. Boiler Go. are
Tor tue saMe matter and should be quasned.
This proposition Is based upon the provisions OF
the Revised Statutes that lf there be at any time
pending against the same defendant two iGdIct.
dinorent offences, the Indictment first
seded by such second Indictment and shall
be quashed:" z Ed. R. 3. $50 and 4O2.l Tue charge
the offender to punishment only by fine and
Imprisonment in the County JAN. The charge of
felony may maybe be punished by Imprisonment in the
some extent the same matter embraced WITHIN
the charge OF forgery, but not necessarily so. The
warrant resulting from neglect OF duty to audit
might De forged IN some respects. Inc warrant
wou.d relate 10 the subject matter OF the neglect,
but the proof would not necessarily invoive 1t.
Tne existencs OF the warrant as legal
Instrument and the proof oil the act OF i0r-
gerry would present inc chiel features or the
crime. In addition to that, however, it must be
SAID that the charge Is forgery In the third de-
gree against the defendant or that he was aces
sorry before the fact; that ne counselled and ad-
vised Inc act oil forgery. 1t appears therefore,
that those Indictments are not Tor tae same Oh
fence or Tor the same matter. IL seems to be
doubtful even whether he prosecuting attorney
would he compelled TO elect which of them he
should Try. 1t must he borne In MIND that
tIon To quash an Indictment involves q legal ais
erection. aud that when Inc question is doubtful
Inc deIenuant Is put to his motion III arrest OF
Judgment. When the application Is made on the
part OF the defendant the cour almost uniformly
be for some enormous crime, sucn as treason, fell
eny, forgery, perjury or subof nation. Tney have
also refused 10 quash for cheats (Barbour's Grim.
1reatse 349, and cases cited; BIsnop on Criminal
Procedure, vol. l, 26S, ana cases clted Cnitty's
Criminal Law, 800 and SO3l. and generally the rule
quash should be clear and free from DOUBT. tBlsnop
supra and cases cited.) Inc only remaining In
dlctment Is that designated X on the tabular
statement. 10 this presentment tho defer danLs
counsel objects that II AYERS az oicia certificate
by tne defendant without setting IL forth. The
Is y citation OF cases whom relate to the crime OF
sas 10
inc paper oa:d IS e
tnat the Court may that 1t 10 an instrument OF
winch the crime may be predicated. In the IN.
was obtained Wy lalsely representing bill OF
Items TO 6e correct and true. aud this charge mght
tacned TO the Dill AS alleged. BY the Revised
statutes the offence Is complete wnen the sigma
to delraud (rne People vs.. Gates. 10 wend., S2o.)
Ine r9is OF peading REQUIRES the pretences to be
tue Peop.e vs.. stoSe. Weno 49,; me u PEOPLE Vs.
Gates SUPRA. and 10 be negatlyed but not neces
sSy al o. ave sgs% the sades relies
OF proof ne must allege anu negative all !
Ceases supra.l lne Indictments must contain
the pubic prosecutor VIII De bound to prove to
produce conviction. IL must show upon It's lace |
that the offence cnarged has been committed or,
In the language or Lord Mansfield, '.it must be
an intelligent story, So explicit as to support It.
self" (barbours OR. j., 14l) IL does not seem TO
he necessary 10 SET out any or the rvances or
pretences nat were In print IN writing out TO
state what they were or purported TO be. rne |
pleader does Ill TINS indictment state what the |
cerilne ate purporled to be-numely, the oniclal |
approval aud certificate oil the BILL 1t Is true tnls
Is not stated expressly, but that the bill ''pur.
ported 10 have attached thereto the oricial al.
proval ana eertincate oil tue said William IA. |
Tweed as commissioner or Public Works,O yut |
the meaning g. ems TO be pam that the appr oval
related 70 tue DILL | am not en- lrey satlsned |
That tue indictments ~ Tree rom oDJection II the
eertlncate 10 TO De rened upon US part oil tue case
Tor tue people, because the Indictment does not In
terms expressly negative the honesty or good latin
OF tue approval contained lu tne certificate |
aud does not set out It's contents except by way
VI conclusion. Tue form OF al Indictment py Chitty
LOT lhse pretences oy color OF ase ana coun tef.
lelt letler aud other tokens states what Is men.
Voheo IN the letter, winch was lalse and winch Ia
TUG ohlel incident OF the OFFENCE, without settiug
out tue letter See Sd VOL CnLty, PL TED, Ia lol.
AL. In the Indictment under consideration tue
lalse pretence Is mat the bill was correct. me