Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1875-03-12


entries) Jewett was an officer within the
statute (section 98.) If not then he Ger
tainly is an agent. and in either event the
statute is broad enough to include the res
pondent. He is the representative OF the
government The Governor then briefly re-
ierred to the more formal allegations of the
Indictment and closed with saving that all
the facts alleged were capable Of proof, and
that il was not necessary to formally set
out the appointment of Jewett az deputy
collector. IL was sufficient 70 allege the
fact. Hon. Levi Underwood closed the ar
eument for the respondent.
| GOV. Underwood commenced by say rug
/ that were it not that the decision oil TINS
| court was final as to the suHiciencY or IN
/ sutfciency of the indictment, he would not
| add word to what had already Deen salu
| by his associate nor in fact would they
| have formally demurred to the indictment
\ at all But he well knew from the clrcum-
stances OF tho case that the trial wouiu
necessarily be a spirited one. not perhaps
on the part of the prosecution, but on the
par. of Mrs. Grundy and rather than to
/ have the points embodied in the demurrer
| brought up during q jury trial, when the
| court would have little "a no time to seri-
/ cu-ly consider them, it was thought best TO
i
eussed when the court could take time to
| consider them. The deialcation had all
taken place since Jewett left the office OF
| the collector. and the fact that it had hap
pencd between Sept. 1865 and the close OF
| the Presidential campaign was doubtless
the all sufficient reason why the matter had
had not been stirred up in Washington
until it had reached point where
! it could be concealed no longer
| 1t would unquestionably be admitted that
the Federal courts were of SPECIAL not gen
eral jurisdiction and that no person can DC
/ 5T them found guilty, except oil suca OIL
fences as were created by the express enact
ment of Congress. All penal statutes are to
he strictly construed and any doubt rs to
whethcr the case is covered by the statutels
10 be resolved in favor of the accused. APP
plying these principles TO this case, we sub
mt that there j. no act of Congress cAarg-
ing deputy collectors Of internal revenue
with the safe keeping, Nc, OF the pubhc
money, ami therefore the Indictment OF the
respondent for the embezzlement OF public
money not entrusted to him by law was de
feetlve The offences are created by the act
of lSiG and the amendment of the sine act
of 1864. but they are applicable only ID Of
fcers and other persons charged with
the actual charge. &c. Oi public
money. The revision Of 1874 consolidated
the two acts and gave the whole the actual
meaning OF the language Of the amendment
Of l-GI. The deputy collector l. the mere
servant of the collector and he may appoint
or remove him ut pleasure. mere IS no
statutory provision which charges them
with the care of the moneys collected by
them. Moreover the indictments are deiec-
tive, inasmuch as they do not set out the
I Of i
collector, nor the regulations Of the depart
ments which are alleged TO exist. Nor Do
the last two counts of the Indictment Tor
embezzlement allege, that the respondent
was entrusted with the public moneys ms
is the real essence Of elH5e--icmeRf.
The meaning Of the word officer should
be that contemplated by the fundamental!
law of the land, the Constitution Of the
United States. This distinctly says that all
officers are appointed by the President By
and with the advice of the Senate, but Con-
gress may By law vest the appointment Of
inferior officers in the President alone, IN
the courts OF law or IN the heads OF the de-
partments. 1t surely would not be claimed
that Mr.. Crane, from whom Jewett : ap-
pOIntment was derived. was head OF Dc
partment, although he NAV have been the
head of q political unto. Can Mr.. Jewett
eyes # the law? l. the deputy collector any
where made guilty OF ENLIGHTENMENT by sta
tute. AS the collector Is, in distinct terms No
subordinate in an office created by that
statute. can be made ! ScapegGat Of the
principal. Ii it were - all official respOn-
>ibillty TO the government l. gone II the
deputy i thus responsive, then lie can
be drawn upon by the government,
and where i the provision for 50 doing
lie Is mere instrument Of the collector.
lie was never assigned 70 = district. The
principal Is the only person who can be held
responsible by the government for mis-
ieasance or n0nfeasance in his Office.
The indictment was then reviewed and
the defects commented upon. The second
c1Gnt-iOT making false entries-Was
pronounced delcctiTe IL not setting out
the appointment Of the respondent 6
deputy collector. Furthermore there was
no law or regulation enjOining the reSpOn-
dent to make any entry upon any record |
book IN the collector Office. The paTtieu- |
lar omissions in the entries alleged. were |
'--ad 10 have been made to enable the |
consul 100 -" The deputy might
a. well be charged with erlmIn--4
because he happened TO leave the collector |
in the Office while he v1nt IL dinner lneTe /
might have been instances Ele4~ opPui
tunity was giTen 70 the collector % en-
bezzle and one of these might nave b>en
the act of the Commissioner 81 internal
Revenue at Washington in continuing me
collector in Office instead Of reporting his |
conduct to the President after his deialea |
tons had become known at the department. /
SIR. Underwood analysed the allegations of 4
the first ana second counts Very thoroughly /
slowing that inesmCch o. Jewe;; Wa not 4
enjOinei BY law with the charge or control /
Of the books of the Office. be could IN no
way be answerabie fer any omission to
enter Or any miSentFy ~ those books.
He also laic down the principle that Con
gress had no power to authorize the Com
missioner of Internal Revenue, or Secretary
che Treasury, % create crime or misde-
mean0r: but II they were thus authorized
lle regulation must be set out and even
:Acu there is no claim that theacis of depu-
tic- are embraced in such regulations. Then
the law creating the OienScs IN this indct-
ment was passed ir Io6e and the duty
charged extends over a period before the
passage of the act. The respondent cannot
be put to trial on an Indictment broader
than the law. The defect in rsHus was also
suggested 1T being alleged 10 have taken place
IN Burlington, not within the city OF Bur
lingtOn, or the town Of South Burlington
An impossible venue Is a fatal a none at
AL. The fourth count alleges the embezze-
meat by Crane and that respondent knew
thereof and failed to report it to the Com
missioner It is not stated what informa-
ion he had, ncF Is any fraudulent infest
lverred. nor that it 49, hiS dafl 10 report.
These are fatal defects.
The logical reasoning of the distinguished
counsel was listened to with the closest in
crest from beginning to the end.
Inc time for the noon recess having az
Iyed, the Judge said that he woul; reserve :
H. decision. Z
The afternoon was taken up with the
pening arguments CT counsel IN the case Of
lohn II. Cheever vs. James :. sheld ct ais.
u this bill the orator seeks to make per
'etual the Injunction. which was originally I
,ranted by Judge Smalley and subsequent
y modified by Judge Woodruff, which re
trains the Street Commissioners of the c
lty OF burlington from editing down the
'dnkS oil Union street, opposite the orators
'remises, occupied by Mrs john II Peck,
n slope greater than two feet hOri, lnral
each foot of the perpendicular Az.
'pauldlng spoke on beh4.i CT the orator. ,
nd X. ii. Start for the Street COmmiS- ,
ionersz The argument will be closed this
morning by +. J Phelps and +. +. Wales. G
WEDNESDAY, March 10. |
The hearing in the case OF Cheeyer ". q
hedd ct ais. occupied the forenoon Deci-
ION reserged.
The afternoon session was taken up wiki '
he hearing Of \. j. Sampson, assignee of
!. NJ. Clark y. \. NJ Clark, bankrupt. =
lassrs. Noble and Davis appeared for tie
ssiguee, III. +. Royce for the defendant
The hearing Is on 4 motion for the paw {
ient to the assignee. OF certain moneys +
'hIch had not appeared on the schedule nf !
ssets which were given by the bankrupt.
nd the existence Of which was first discover e
1 at the disclosure OF the bankrupt made C.
eiore the Register in Bankruptcy. II
THURSDAY. March H.
The hearing in the matter of A. j sam
IN. assignee. v. A VI. Clark was con L