The Portland daily press., 1878-12-09
THE CONSPIRACY CASE.
A Motion to Quash the Indictment.

| N MOIOu 10 4uHsn tue 1uulCtmeut'
| The case of the United States vs.. John o.
| Winship and als.. came up for trial in the
United States District Court Saturday morning
at 10 O'Clock. The indictment found by the
grand jury charges John o. Winship, Geo. W.
| SWEET, Thomas A. Holland and VIM A. Leav.
| lit with conspiracy. Holland and Leavitt hav'
| ing turned states evidence mol pros. was en-.
tered in regard to them by the District Attol'
ney, Mr.. Lunt. The defendants in this suit
now are John o. Winship and George w.
SWEET.
That the case has excited great interest wal
manifest from the crowded court room. Dis.
trict Attorney Lunt appeared for the Govern
ment, Charles Clifford for SWEET, and Bion
Bradbury for Wlnship No objection being
made by the counsels for the defendants the
indictment on account of its extrems length
was not read. Mr.. Bradbury then moved to
quash the indictment, alleging in support of his
motion the following reasons:
a. Because all the counts in the said in
dictment except the 9th are defective in this,
that each of said counts charges an offence
which, at the date of its alleged commission,
United States, and could not be made 50 by
the subsequent Independent action of Holland g
creditors by iusttuting involuntary proceed
ings in bankruptcy against SAID Holland.
~ Because all the counts in said indict-
ment fail to set forth sufficient facts to show
that the bankrupt court had jurisdiction Of the
bankrupt proceedings alleged against Thomas
A. Holland.
(3.) Because the first count fails to allege
the intent of the supposed cOnspirators to have
ham tn dofrqud ThomaS A HO1lQnd'S crQditors
generally, but only alleges intent as to certain
creditors specifically named.
a. Because in the LIST, Sd and 4th counts of
said Indictment the trade or business of the
said Thomas A. Holland is not set forth and
described.
81 Because in the first count there is no
sufficient description of the goods and chattels
alleged to have been obtained by said Holland
upon credit and remaining unpaid for, subse-
quently pledged or disposed OF with intent to
defraud his creditors.
co. Because the 4th count does not specifi.
cally set forth the false pretenses by which said
Holland induced Scull & Company to give him
credit.
as Because the 9Th count merely allie ges
an intent TO defraud certain persons specifical-
ly named, and does not allege an intent OF Hol-
land to defraud his creditors.
Mr.. Clifford made the opening argument
upon the motion. The first and great objection
to this indictment is sustained by the opinion
of the Supreme Court of the United States,
Otto $40, in the case of the United States vs.
Fox. All the facts alleged in the counts ex-
cept the fifth occurred before the initiation Of
the proceedings in bankruptcy. Before these
proceedings the acts did not constitute an Of
tense against the laws of the United States as
alleged in the indictment, but against the state
law. In the case cited the Supreme Court held
that the constitution would not permit an act
not crime at its commission to be made
crime by the subsequent acts of other persons.
This is case similar, and the exact counter
part Of the one before US. By the decision OF
the Supreme Court of the land therefore every
count except the fifth of this Indictment should
bs quashsd upon this objection alone.
The second objection is based upon the legal
principle that the conclusions of the civil courts
are subject to revision 10 criminal cases, when
they constitute substantive part Of the accu-
satiop, and consequently all the facts must be
alleged. This Indictment does not show either
That sufficient number of creditors or a suffi-
Gent proportion of the debts of Holland had
been represented in the petition in bankruptcy.
In support Of this objection Mr.. Clifford cited
Bankruptcy Register 112, 16 Bankruptcy
Register 1911, and IS Wallace 457.
For the third and seventh objections, which
are substantially identical, he cited Lowell 402,
where in the case Of the case of the United
States W. CLARK it was held that the scope Of
the act covers attempts to defraud the bankrupt
creditors generally, and not individually.
The fourth objection is founded upon prn-
cple we'll known in pleading. The trade and
occupation of Holland is not set forth or de-
scribed. This is glazing defect and should
vitiate the first, third and fourth counts.
District Attorney Lunt replied that owing
to the short time he had to prepare an answer
to the objections, he could not answer as fully
as be might had he more time. The offence
charged is not the offence specified in Section
! 513 of the Revised Statutes, but conspiracy
to commit such an offence. Although the Of
fence may not be contrary to the laws of the
United States, it is contrary to the state law,
and the conspiracy is forbidden by the United
| States
Mr., Lunt argued that the condition of the
bankrupt was sufficiently shown without put
ting his schedules into tho bill of indictment.
This indictment was framed in this respect
! uh6 5lulldE luubjbiuchlo III Observation-Disclosures ou0
there no objection of this nature was sustained.
In regard to the fourth objection, the business
| of Holland was sufficiently indicated by the
description Of the mortgaged property, consist
ing of the machinery in wooden mill, with The
wooden goods and materials manufactured or
! in process of manufacture Tae alleged de-
: fects, if defects they were, were no. such as to
justify the quashng of the Indictment.
/ MIR. Bradbury made the concluding argu-
ment He claimed that the first objection was
/ vital and fatal. If the object and purpose OF
the alleged conspiracy was not conspiracy
against the United States then there was no
conspiracy. The dates of the ale ged conspira-
cy are April -, May l, May 4, July and July
26 All except the last came before the initia.
ton of the proceedings in bankruptcy. AL.
though the petition in bankruptcy was filed
on the 81 of July, no notice was given until the
10Th.
The last count, which alleges conspiracy on
the 18th of July, is defective because it sets
forth not general ''intent to defraud his cred.
itors' on the part of Holland and the others
but an intent to defraud certain persons.
Judge Fox said that he considered some Of
the objections serious. The first is supported
by decision of the Supreme Court and is en-
titled to much consideration. At present he
was not prepared to decide upon it. but would
let the case proceed as to that objection, and il
on consultation with his superiors he found
that it was well taken, would throw out all
the counts except the fifth. The most serious
objection he considered was the fourth. Upor
that be would reserve his decision until Mon
day morning at 10 o'clock. The court was
therefore adjourned until that time.
Personal.
d. A. Shorey Of the Bridg.on Newa, is al
the City Hotel.