The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-06-14

tinct offences requiring different pun ments cannot
sucn a count In Indictment Is bad Tor dupiiety
ana that CONVICTION upon IL would be reversed
on Il snouid also. he urged further,
resolution passed without power or authority can
confer no authority, aud !. nuli'y. rhs crime 70
the resolution and there u NO law u 10 contended,
deprves The Board Of Aldermen OF the pleasure
indictment does not charge the defendants
with causing the resolution TO take ensct,
~, only 80 far as IN them lay" On the theory
prosecution that they had sno power 10 auno-
inoriry 10 pass sucn resolution they COMMITTED no
offence ana II tncy had no anhoriiy 20 pass the reso.
luton they committed no onence The nuisance"
indictment should be quasned, because " uoes
moi set form the means by which The NUS
ance, If any. was kept. mainlaned and Continued.
The means should DO stated he indictment. LOT
s.msde meanorn should be quasned, because. oy law
OF State OF New York, Inc erecting. maintaining
and continuing OF stand Tor the sale Of newspapers
upon 4 street or s,dsw ak 10 me city New York
is, proper sense. an construction" or an 'en-
croachmsnt" or .'nLisancc.'
RIGHT
After citing the ordnance passed by the Common
Council January 8. 1876, TO regulate perlAts Tor
street stands &c. he insisted that II Is argued
tnat having giving the power by ordinance 10 the
Permit Bursau the Aldermen had no right 70 pass
tIon only be looked upon tue indorsement
by the Board OF John Buffers application. and taat
be- was stu. CURED 70 pay MS DOLLAR ana t.ne oua NY
the duties OF the diAerent Department.
Executive, Legislative and tho Department Of Pubic
Wurks-in regard TO this question of street stanas
and sucn matters. IL is the auiy Of The Board OF
Aldermen TO pass ordinances regulating them; the
Mayor through his proper officer grants he pernits
as auth orized by tue Aldermen, and in case
any OF persons To whom pcrmiis arc
abu the priv lege and erect INSTRUCTIONS
encumorances, me Com IN ssioner Of Public Works.
through officer, removes them. There should DC
COMIC, Whatever Among the concluding points
raised was that u member OF the Board Vi Alderuen,
acting cxclus vely bis legislative capacity 10 not
subject Ind clment Tor any vote he may cast ua-
ess ~ be charged hat no was inuueuce0 oy oaso ana
Mr. Elnu Root followed In further argument IN
the Adermen'- defence HIS main point was nat the
resolution complained OF was within shs law vi power
OF Common Councli. He spoke with tue axe
fervor the preceding Witness and was squally pro-
iuse IN The ctati Of sutborities.
CASE PROSECUTION.
Assistant District Attorney koi lbs opened tho
argument for toe prosecution. rLs case, ne s,id,
was nol 10 mis- opin,on quite No trivial the
opposing ooupse. would mu~e IL. The questions
,uvoivsd we're most serious u was no.
tortou- fact thai streets OF The CITY
we're obstfucieu -omeuo,y was Responsible Tor "
Are tue fifteen indicted Aldermen sssponsbier rue
two propositions :-.Mamms, please 4 IS ht.Ie
one, :" and 'You're another" Inc news stand had
In court As to the Two indictments, ,hey were, Of
course, drawn 10 the District Atorney's ONCE
Sucn was the custom. the Graod jury sIm-
ply giving The conclusions which they
arrive. The usual formula ot this class OF lndict-
meuts had been followed. Under tue charter the
Aldermen have no power 10 obstruct me streets. In
the case of the stand question there was no
dispute the facta There had been brought INTO
the case matters entirely extrnLeous the statement
OF fact In the Indictments could not be
The matter introduced might % proper
TO submit 20 jury, but had no place nere.
Judge Barrett that the only iact agaiUst the
Board OF Aldermen seemed 10 be the passage OF
the resolution authorizing the Newspaper stand.
Mr. Roilins INSISTED that the afuavits had no Ousi-
I ness In the proceedings
COURT DBPESCB.,
judge Barrett said that the papers In his opinion
we're properly before the Court motion to quash
Mr.. Konns, resumng his argument, prosecuted 70
reply 10 The various points advanced ny the opposing
counsel The argument was q most cogent one and
listened 10 with earnest attention. He, ike inc
preceding counsel, cited various authorities IN sup
porl ol his legal propositions, and ella msd the ndic-
ments properly ound and that instoad OF oeinz
qushd the parties indicted should be tried upon the
charges embodied n tue ndic ments.
Mr. Phelps followed IN briei argument. He in
sisted that the other side od not properly appreciate
tue ONCE Of motion TO quash an Indictment, and
that only proper ground such motion was That
the ndtctmsbt itself IS bad indctment. NO assault
had been made as matter Of pleading upon the
Indictment The afhduvits submitted uid not
The Indictment, but simply SGT up that there ~
good defence TINS, he insisted, ave NO ground
mt,ed at The .r,ai OF inc caus. As 10 his own
stoop there might Dc adduced good rsa'
sons Tor punlss,ns him. nu, snas was
be quashed. Ii each Alderman had been examined
before Grand jury every essential TACT charged 10
the lndctme would have been proven. He urged,
in conclusiun that II the present Indictments were
quashcd on aidavits Submitted u would De b.
IshIng q dangerous precedent ana would open the
way doug without tra,s in future. as any one on
being indicted might move 10 quash on afidavits
SEEKING IMPORTATION.
Mr.. David Dudley Field asked winch indictment was
found first
Mr. Phelps said II would be impossible to tell
Mr.. Field said that when the caso was previously
before the Court The District Attorney IN answer 10
same question referred 10 tho cord the proper
source OF Informa tioR. All they could hnd vas tho
record OF me indictments but this did not
which iuund hrst he wished 70 be positively tn
formed, AS II one Indictment was quashed tue other
must be.
Mr. Phelps said that ord not follow, the indctmen Is
being DT two dlstlncl offences.
Mr. Fied claimed that there was substantially only
offence.
Judge Barrett said that the statute stated that II
two Indictments found against person Tor the
same oneuce one must DO quaehed, aud Thar there
be Two Indictments against the same person
Tor the same subject mater
leugthy desuitory discussion followed on the
question whether ne inaietme nts embraced the
same offence. At lew minutes to I'VE O'Clock the
Court adjourned until haIt-past eleven O'Clock this
moruing, when David Dudley Field will make the