The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-02-08

.oi ene nefefise reads: "Tt16t public record
GER authorized by law TO perform that func-
taoty and intended to serve aus evidence Of
something written, said or done. That is
good law The first charge desired by the
defense must then bsdenietl Strict eonform-
ity tp the directing provisions Of the statute
IS not requisite to make document adnissi-
pie " evidence and the absence of mere
orfaass.es o aa VIII not t1tverta paperof cbarac-
/ IeI as public record, when the essen
Ma4 OF the law have been complied with
| WHAT was The object of the law in regliirinp
the consolidated statement? T'o preserve for
lsiesehee ~ the archives Of the State The statt,
q q the whole vote in every perish TO give the
RetWnlug Board an opportunity to check off
tile eommissioner' statements, sent i'm from
e,@n aes poll u the ssverag parishes. Was this
;a,ls Gulssosfaaten M statement made ythe super
% %yisos o1 she parish and was it sworn to by
tnmt Was It. received, psed and filed as a,
pubhe record? Is it now q ns5,lic retord3
point. 80 va 'i'''
| The second charge asked for is that this
consolidated return not being an official doctl-
ment could not as such rtNm the, basis of "a
forgery, as charged'in the Information before
ths court our II the jary finds from ahe evidence
that the paper be o public record 1t would be
| subject Tor forgery. The part OF the third
| charge asked for. not already referred
p to . by the eoart is, a repetition,
nf the second charge requested Tt Is clained
that as the paper does not bear the certificate
of the clerk OF the district court and the seal
| OF the court, II is not a pubic record. not re-
celvable Ia evidence and not q basis for the
charge OF forgery. The court has passed on
| these questions and refuses to instruct the
| jury as requested. = g.
AS to the fourth request ST the defense, the
court IS OF the opinion thas the returning Off
| act Of the State Legislature could make them
! So The opinions Of the Eate Supreme Court
are referred to as being adverse to this view;
but there can be no doubt that such an inter-
fNf thfx In u.
TO both the spirit and the letter of our consti-
tuition, which instrument vests In Che courts
anth4rized aut,;is BY it all judicial power, and
magistrates exercising police Jurisdiction
Discretion must be used by every public fllnc..
tionary, whether he be constable or Governor;
but the necessary exercise Of discretion by q
the judicial ermine and SO cloak his possible
crimes, from public Justice This charge must
be denied.
The. fifth charge applied for is that the bur-
den OF proof as TO the guilty knowledge OF the
accused Is on the State. The court SO charges:
but the onns lr0bdndi is shifted when prima
facie case is made out by the State. The de-
tense rs: requests I the court to charge
Sixthly-That In order to justify the infIu-
ence OF legal. guilt from crcumstantial evi-
dence, tho existence Of exeuipatory facts must
be absolutely incompatible with the innocence
Of the accused, and incapable of explanation
than OF his guilt. The court SO instructs the
jury. .s5
The seventh charge desired is in accord with
the law upon the reasonable doubt, which will
be alluded to further on.
The eighth charge asked for rectes the
words OF the statute, and is granted
The ninth request, which defines what the
clerk s certificate to the consolidated return
charges the jury in accordance therewish.
The tenth request states the law fairly:
Where an act is Of the esecnce OF the thing
reaured,, BY law weT9 and nt y IS essahta s m to
it is imperative and cannot be dispensed
with But the making of the certificate Of
the clerk of the district court is not OF the
f q 3a7a the thing refd e by the essoa
return Of the vote OF the election OF the
parish. The object of the law in that regard
was to secure an authentic record Of the vote
to dr an@ 70 the o tbs gtas and the
Could that object be accomplished without
the formality Of appending the certificate
IT SO, the certificate Of the clerk of the Dis
the object and intent Of the law" p''''
The court gives the. jury the charge re-
quested by the counsel for the defense IN their
eleventh application, but with the comment
s s '' the position @ 'f that % The osson s a of
the clerks certificate Is fatal, divesting the
consolidated return OF character Of q public
record in the sense OF the language OF the in
formation.
The twelfth charge desired by the defense
is given in tOtiden, uertts. It is for the jury
to say whether the document marked ~ is
wanting in the essentials to make public
record With this direction the court gives
to the jury the charges requested under the
numbers thirteen and fourteen.
Requests fifteen, sixteen and seventeen
seem 10 the court to be unnecessary. Num-
ber fifteen states correctly the purport of the
part of the statute to which it refers. but
that part Of the law does not cover the issue
here.
Numbers sixteen and seventeen are good
definitions OF the legal significance of the
terms Judicial and ministerial acts The
court has already laid before you its under
standing OF the nature OF the functions Of the
members OF the late Returning Board. In the
members OF the Returning Board were not
judicial officers, and the eighteenth charge
applied for with reference to their privileges,
imm,nities. and liabilities as q part Of the
judiciary of the State, must be denied The
nineteenth charge requested is good law; It is
for the jury to say In the light Of the law and
considering the evidence, whether document
.be invalid or void ON its face" 81 I.
The court instructs the jury in the same,
terms as to request No. 20. The twenty-first
charge asked for Is q correct statement of
law, and may be considered by the jury In
connection with the instructions already
ond charge but says further, that il the cleo
tion act OF 1873 made the members of the Re-
turning Board judicial officers, it was 50 far
unconstitutional, and violated the letter as
well as the spirit of the fundamental law.
The twenty-third request is aeceded to by
the court and the jury is charged in accord
ance e herewith. r.. The proposition submitted
but IL In the course OF the examination of
the charge against the prisoner any fact or
circumstance tending to inculpate the ac-
cused should be brought to the knowledge of
the jury, and which might be explained
by the aecused, but remains unexplained,
| then the jury may consider his omission to
| explain as @ presumption OF his inability to
explain. The twenty fifth charge requested.
| The court cannot give as requested, but sub
nits this as the law applicable to this case.
The declarations, acts and other proceedings
Of the Returning Board are legitimate matter
for consideration, in determining whether or
not o conspiracy had been formed. II you
are satisfied from the testimony that all the
members did engage in Il conspiracy, then the
| declarations acts and proceedings of any one