The New York herald., 1878-09-10
EARLY AGAIN.
The New Indictment Declared To
Be Defective.
INTOXICATING OR SPIRITUOUS? =?
Views Of Prominent Lawyers on the Ntw
Excise Point Raised.


excitement in the city, and, although the fact was de-
MED by a morning journal, its confirmation in tho
Court OF General Sessions yesterday added fuel tho
fame Judge Sutherland was pr omptly on hand in
court, prepared to hear argument on Judge Often
hocfer's point; was the dscovcrcr OF the objection
and also Assistant District Attorneys Horace Russell
and Rollins. The spacious court room was closely
packed with criminal lawyers. liquor dealers ami apos
ties OF temperance, men anxious TO hear the law.
Judge Dittenboeier rose and said that iDasmuch as
his client had boen reindcted thereby superseding
the 1rst indictment aud granting the validity Of his
objection, there was nothing before tho Court.
Judge Sutherland irowned and looked ut Mr.. Rus
sell tor Information. Having IN morning jour
nal that Early had not been reindcted. he naturally
supposed such to be the tact.
Mr. Russou informed the Judge that the HERALD's
statement was correct and that Mr. Early had been
indicted a second tmc in consequences OF which he
called on that Unfortunate to plead.
Judge Dttenho ocfer said he would plead not guilty,
with leave to withdraw for u motion to quash.
"ro Quasb ?" asked Mr. Rons.
'Certanly." replied the Judge. $40 quash, for this
second indictment is just iuulty It's predecessor
The statute says that porson guilty OF selliug noxi
eating liquor on Sunday as beverage shall guilty.
Now this indictment charges him with selling spirit
uous liquor or course 1t Is just as faulty as Tho
other"
The argument WIS adjourned, everybody being in
state Of great hisrty.
AS Judge Dttcnhocier left the court will copy OF
the Of 1857 under ana his ccnt, Andrew
Early, on tho other, he was pursued by crowd OF
queris,s, all of whom he laushinely dismissed.
Toa HERALD reporter he said :-"rne HERALD Is re.
ally the power IN this Until the HERALD took
hold Of 1t no one noticed t Now IT'S all the talk,
and very properly. too The Indictment was found on
Friday last, the HERALD said. and was iurlher
surprsed to find such garug error In the m
scrutinizng indictments. a well xnown ruic OF law
provides that they must be drawn in tho language OF
| the statutc.c
''But the District Attorney knows that as we'll as
| you.'
| PECULIAR OFFENCE.
"Certanly he does. But this Is Il peculiar offence
and is based on particular section IN which the
word Intoxicating occurs, and in order to make IL
right that word must be used. In tho other iudci-
| men,s against mon VINO sell to minors aud Indians
the word spirituous occurs. and all these blanks
printed with the word 'spirtuous' In them That
| counts Tor TINS fault"
SWELL now, Juaae, what practical benefit is all this
technicllity to tho dealers ?'
"Just this Heretofore, in order con vict II was
| only necessary to provo sale. Then the Court
directs jury to convict they can't holp ,nem.
selves. But now it is madc a question Of iact and
| must therefore, go to tho jury. Aud II we givc
s Wi see m oraor
TO convict, the Court will charge they must be con-
vinced that the sale was intended for beverage. and
head IN Tint haitcr'
| "But that's cvasivc''
|
prove liquor is medicine and all that. All want
do is TO work up the community that 1t will
on common sonse law"
"wclI wan, It that all unlicensed selling will
be stopped. Now there Is moro illegal trafhc than
any other. Then, too believe in respecting public
prciud,ces. would have liquor sold during
pornool OF churches. good law would bring 10 .
tremendous revenue for the support OF public
will be impossible convict Of selling iiquor ns
beverage unless the parry no buys IL medicine
Is prepared to take the chance Of going up for per-
jury"
District Attorney Phelps sat IN his easy chair and
courtcously listened TO the HEHALDs query as TO tho
| present status OF The Early ''WcIl, SAID nc,
| 'thc first Indictment was IN error through clerical
omission. Tho words OF the statute should have been
| inserted Five minutes work can arrange tnat Tho
HERALD was correct 10 reporting Early's reindct-
meat In relation to the other point all say Is
It now becomes question tor jury. Under tho old
law was necessary to prove the sale only But sun
thnk tha. jury that would acqut on that .echni-
"How could they II the Court charged them TO con.
victY"
| swell tna,'s SO. THIS certainly does mako It moro
! difficult because ingenious counsel raise qucs-
tons innumerabe and perhaps boios even an honest
.:But an horcst joy has go by the evidence, aud
| II testimony shows the liquor was bought Tor medi-
| cinal purposes what thcnf"
''rhat gives them q chance to Disagree
"Havo you thought much about tho kind OF a law
mot much. bccansc have never seen time when
thought e good law could be passed."
ssNo especially not last winter. You soc The mem
bcrs OF tho Legislature have great deal OF human
Those who are not brbcd but are bribab!c, will bc
mad because they don't get their Desires aud thoso
VINO are unbribaoe will be airaid tho public wi think
they have been brbed. The former Won't vote for
good law. because there's no money In H. and tho lat
ter won't vote because they tear they may be
pocted. lts very difficult task 10 bring liquor deal
ers and temperance people together IN pubic or In
harmony. Neither side trusts tho other. Tnis
| OF Earlys - oil no special account II gains IT'S
no.orioiy because the HERALD got hold tho poin.
and tho point happencd 10 DO vaiid.h
ANOTHER LAwYLR's VIEWS
Mr.. w. O. Bartlett was tho senior member OF tho
notable group that protested one day against Judgo
Noah DAVIS sitting IN certain casc--a group
Root and Mr.. Bartlett, Jr., with Davu Dudlcys Fled
besides. Mr.. Bartlett is known as constitutional
| lawyer and HERALD reporter found him IN ms
coscy chambers In Nassau street, facing the Ciiy
Hall PARK, with copy Of the SUNDAY HERALD in his
| shapely hand. lie was asked II he had noticed the
| report OF tho Early case. ..Yes,' said no. III
just reading II. have read it very carefully. and
the point though technical. Is u very correct one"
"What help does 1t give TO the doaiersf'
| "rho liquor dealers fall into serious error In
supposing they can violate the law with mpanity BY
nouinay selling rs tonic or a medicine, when seal
ing IN reality as a beverage
1T would DO for the Jury TO dcciic, wouldn't NJ"
"rhc purpose OF the sale would be question OF tact
for jury and II the evidence that the
was rsa no as sast saas "M"
~ not safe TO attempt an evasion OIL the law IN that
way"
''But n II Is sold nedcine--that IL, II tho pur
1 chaser asks II as suchY"
rhe indictment, undcr our statute, must certainly
state the sale TO be beverage. the distinction ID
madc light OF by some persons as purely technical;
but Il rs matter oi substance IL is essential to tue
offence that the sale should DO as q beveragc--not
ayowcdly, but In lac. Many things which
relocating persons sncer ~ as technical
matters OF substance. For Instance,
you give your note for Ave thousand collars fhc
payoc sues you Tor ton. You say, promised only
i've lilo answers you, contemporary, on. that
Is merely technical diiieronce-a matter OF ngurcs.
There would be much reason IA such reply rs IN
many Of tho criticisms we near about ,msre teen,
ncalIes,' as they are called, IN criminal law. III
Early had boon imprisoned under tho hrst indictment
10 would have been nlgraat a violation oil his con.
| stuuonai rights as can well bo imaginsd Tho IN
| dctmcnt trgcd 10 offence"
ssHow about the second indictinent?"
III have examined tho new indictment found against
Early and Ind ~ as fatally deIcotivo as the OLD.
Whatever tho present cnect may DO all persons
aprec that the will DO the passage Of
now law, which viii Afford revenue tho city. pro-
lection 10 the honest dealer and mako certain tho
| punishment OF those VINO soil without ~ ncensc