The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-03-19

every consolidated statement OF votes made
by each one respectively, and transmit Their.
officers and these officers should canvass and
compile the votes, as the statute requires, not
from these consolidated statements, but from
the unaltered commissioners returns, no in
by the body polite. The supervisors con
solidated statement Is not made by the
statute the basis of the final canvass
and compilation Of the vote, as the original
returns OF the commissioners are, and
hence the alteration and forgery. of all OF
them, the returns of the commissioners re-
manning unaltered, would not change the re-
suit of the election in any. parish. 10 consti-
tute forgery, the forged instrument must be
one which, II genuine, may inluTe another anJl1a,
ten ct the instrument. or by the ayerment OF
matter aIi,usde. Where, from aught that ap-
pears in the information, the instrument was
a natdun pactam or OF no effect, forgery can
son, 35 Cal, SOB. And the same principle of
course applies to the uttering of a forged in
strument.
It is unnecessary for us to say whether the
consolidated returns OF the supervisor OF
registration, without the clerks certificate,
Is or Is not a public record, susceptible OF
forgery. It is sufficient to remark that the
paper offered in evidence Is not the instru-
ment, the utterance OF which as forged Is
charged upon the defendant.
After conviction motion in arrest OF judg--
ment was made, because it was not charged
In the information, either in it's original form
or as amended, that the uttering Or publish
ing the alleged altered and forged instrument
was dOneby the defendant in any official Ca
pacity, either as one Of the returning officers
or in any capacity other than as an individu-
al and that such offense could only have been
committed in an official capacity to operate
an injury. to or fraud upon any person or
body polite.
It is evident that the uttering and publish
ing by a private person. or by a person In
any public capacity other than that OF return,
ing officer of elections, could not have injured
OF defrauded any one Suppose that e. four tl T
uttered and published as true, altered and
forged consolidated statements of votes OF
any parish at an election, as made by the
supervisor of registration, and had caused
the same to be printed in the official journal
under their signatures as presidents Of the
banks, would they have been indictable there
for under the statute? And why not? Simply
because they had no legal mission or
authority to do that act, and as no legal
be injured or defrauded by it. Every one Is
presumed to know the law, and therefore to
know that the persons, thus altering and pub
fishing, were without authority to do that
particular act, and that 1t vas void and OF no
this crime that it should have been committed
by public officer, whose function it was to
prepare and publish the true CANVASS and
compilation Of votes. and the averment that
he uttered and published the false canvass
and compilation in his official capacity, and
under color OF his office, is essential In an in
formation to support q conviction, and justify
a judgment thereon. Theinformation has not
such averment.
The charge Of the Judge below, which is adj
mirablein its judicial tone and temper, though,
as we have seen, erroneous on the questions
of law we have reviewed, proceeds through
out on the idea or assumption that the act
charged In the information as criminal was
done in the defendants official capacity.
Even the instructions asked by the defend
ants counsel are based on that idea. 1t was
nowhere so charged.
1t is not needful to say more for the de-
cision Of this cause, nor were we inclined to
advert to any OF it's features, other than those
directly presented by the record, but we are
driven from this reticent attitude by having
spread before us in the printed argument OF
some OF the defendants counsel an open let
ter, dated Washington, February 4, 1878"
addressed to the prisoner, and signed by J ohm
Sherman, Stanley Matthews and others, in
which the public, and the people from which
the jurors are to be drawn for his trial, is in
formed that he is falsely accused and mali
cously prosecuted.
A few years ago-it was within the present
decade member OF the British Parliament
undertook to influence the course OF public
prosecution, then pending In an English
court against a fraudulent claimant OF the
honors and estates of an ancient house. The
criminal trial there, as here, had been pre-
ceded by a civil proceeding, and both We're of
unexampled duration, so that the question,
who was the rightful heir Of the Tichborne
family, had extended beyond the legal circle,
and had invaded social and political life.
When the unwarrantable publication had
been made by the member Of Parliament
under his own signature, In which he had en-
deavored to bring approbrium upon the court
and it's officers by charging that the claimant
was falsely accused and maliciously prose-
cuted the Lord Chief Justice, Cockburn,
promptly repressed his impertinent though not
interested zeal by infiicting upon him fine of
ESQ., and sentenced him, IN default. OF pay
He went to jail, and there remained until a
relation released him by paying his fine. On
the re-assembling of Parliament at it's next
session, the Judge formally communicated his
action to the House of Commons, that it
might be officially known he had not wantonly
watchful over the invioability of those privi-
leges. silently approved the judges vindica-
ton of the sanctity Of his court.
Public opinion, in this instance and in this
country, can alone exercise that punitive
power, the employment of which is equally
we'll merited on both occasions.
1t is ordered, adiudged and decreed, that the
Judgment and sentence Of the lower court is
avoided ahd reversed, that the verdict of the
jury is set aside, and that the prisoner be dis
charged from custody.
Plus TX and jefferson Davis.
cleveland (Ohio) Catholic Universal
In personal letter the editor Of the Uni
verse has received from Hon. jefferson Davis,
Holy Father, which we feel we cannot err in
making public