Ottumwa weekly courier. (Ottumwa, Wapello County, Iowa) 1872-1899, 1877-10-03
ms'kEs.


are-The Dlstplct Assorney 60
:Drop tho rrosecusien
Special Dispatch to The Chicago Tribune.
ST.. Louis, Sept. 2S.-A large crowd
assembled in the United States Court
room this morning to hear the deci-
sion of Judge Miller upon the de-
murrer to the plea of pardon in the
case of the Government against Dea-
con William Mckee, in which suit is
brought for the recovery of over half
a million dollars. The case has ex-
cited great interest," as it cmbodies a
point of law never before raised, and
will be q valuable precedent. IL will
set at rest the mooted question wheth-
er or not the exercise of the pardon
ing power of the President of the
United States in the case of party
tried, convicted, and sentenced under
the United States laws, will act as a
bar to civil actions growing out of
the same Offense,-in other words, it
will settle the question as to whether
a defendant shall be held amenable to
both the criminal and the civil law
for the same offensc.
At half past 10 o'clock the Court
appeared, when the minutes of ycster-
day were read by the Clerk, after
which Judge Miller stated that he
would proceed to deliver the opinion
on tho demurrer in the Mckee case !:
This is q civil action brought by the
Government against Mr.. Mckee to
recover the liability which Sec. 1896
of the statutes of the United States
imposes, of double the amount of tax
es of which the United States has
been dcfrauded by tho unlawful re-
moval of whiskey from the distillcrics
of divers persons at different times
within this district. The petition
charges that in all these removals the
defendant, in the language of the stat
ute, "aided and abettcd." To each
and all of these charges the defendant
makes two defenses-that he has been
indicted in this court, convicted, and
punished for the same offense; that
for these offenses, he has been par
doned by the President, and he ex-
hibits a copy of the pardon with hiS
plea. To this answer the plaintiff dc.
murs. In determining the sufficicncy
of both these defenses, it is necessary
to ascertain clearly the nature of the
offense charged in the first indict-
ment for which the defendant has
been punished, for it is the same Of
Tense and defined by law for which
he is now prosecuted, and is also for
the same transactions. Our laws for
bid that he or any one else shall be
twice punished for the same crime or
misdemeanor. In the forme: trial he
was indicted for conspiring to de-
fraud the Government of the United
States out Of the taxes:due on whisky
distilled by the several parties men
toned, and, in pursuit of that conspir-
acy, other parties than defendant who
we're his cO-conspirators did unlaw-
fully remove said whisky. 1t thus
appears that the whisky was actually
removed, and that, by this removal
the Government was defrauded of its
taxes; that defendant was one Of the
several persons who conspired togeth.
er to do the act, though it was not
charged that he personally took part
in the act of removal. In the present
case, while he is not charged with a
conspiracy, by that name, he is charg
ed with aiding and abetting this same
removal, and, if convicted, will be
punished for the same removal. We
are of opinion that his joining the
conspiracy Of which the purpose was
to remove the whisky, was aiding and
abetting the removal, which was eff
fected by means Of that conspiracy
How can a man more ef1ectually aid
an unlawful act than by counseling
and advising its execution and giving
his influence to its support, and the
best energies of his mind to devise the
safest and surest means of its accom-.
plishment? If three men agree to
compass the death of another, and one
of them puts their joint purpose into
effect, do not the other two aid and
abet the murder, and is not such ar
agreement also a conspiracy to muir
der the victim? We are, therefore
of opinion that, if the specific acts OF
removal on which this suit is brought
are the same which were proved in
the indictment, the former judgment
and conviction is bar to the present
action; and we are also of opinion
that tho allegations OF the answer are
sufficient averments that they are the
same. If the counsel for the United
States thinks they arc not>the same,
he can take issue in that and have the
issue tried. Little need be said about
the plea of pardon, because, if the in.
dictment and sentence of Mckee were
for the same offense, both in law and
in fact, for which this action il
brought, it is conceded that the par
don is also bar to the civil suit. II
ist-ss'r~s nv, ~n.sc,, vs. 10, uuuUl
that it is SO. As it stands in connec.
ton with the avermcnts of the an.
swer, we hold it to be a good plea
Whether it would be a good bar to ar
action for acts not included in thai
prosecution and of the same charac.
ter, we need not now decide, though
l have personally strong impression
that it would. The demurrer is over
ruled.
| Judge Dillon concurs. What ths
Government will now do has not We
been decided, but it seems to be tht
opinion of the United States Distric
Attorney and his associate connse
that, under the decision OF Judge Mil
Ter, further proceedings will be use
less. Mckee and his friends regard
it as q decisive triumph and a sub
stantial bar to further proceedings.