Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-02-03

Some time before 10 o'clock yesterday the
District Court room was filled with persons
drawn there by the announcement in The
GLoBi that the decision of the judges upon
the demurrer in the Mccarthy Deering case
would be made. The defendants were among
the first to enter the court. At 10 o'clock
the court was formally opened and Judge
Wilkin gave the decision as follows:
We have carefully considered the arguments
interposed to the indictments found at this
term of court in the of Samuel Deering
and Jerry Mccarthy. There are large num-
Der of these indictments. some against the
defendants respectively. There are, however,
only some five distinct substantive offences
charged, and these all for acts improperly
done omitted by the defendants in the dis
charge of their duties judges of election.
There were large number of these objections
raised upon the argument Of counsel to the
indictments, one of which goes to each and
every Indictment, and that is substantially.
that it does not sufficiently appear from these
indictments that the acts complained OF were
done at an election held under the authority of
law; that it does not appear that the election
was held forany public officer OF State county,
town or municipal office.
Under our statute it provided that an in
dictment shall contain statement of the acts
constituting the offense, in ordinary and con-
vides that indictments shall be direct and GER
tain to the ofense charged, and as to the
particular circumstances of the offense when
these are necessary to constitute complete Of
Tense. IT is further provided that an indict-
ment shall be sufficient, if it can be understood
that the acts constituting the ofense are clearly
and distinctly set forth in ordinary and concise
language, without repetition; and it is sufficient
if it can be understood that the acts constitu-
ting the offense are charged with such degree of
AT ~ in of rOnyy rtIp
determine what judgment to give according
to the right of the case.
1t is undoubtedly the object of our statute to
do away with many technical objections that
under the former system, led to failure in the
administration of justice. 1t was not intended
however. conceive, to do away with the
well settled principles of pleading both civil
and criminal cases which require certainty in
the allegation of important facts
In the cases before it is not directly alleged
that the election at which these ofenses are
claimed to have been done held under pub
| lie authority; it is not alleged that they were
for the purpose of electing any public officer of
| State, county, town municipal offices. 1t is
averred that at the annual election on the
9th of November, 1877, the defendants acting
as two of the three Judges of election, there
being two clerks Of election, the polls being
/ opened III the morning and kept open until the
1 afternoon, and at which numerous ballots were
/ deposited for various officers, and at the con-
! cluson of which the votes were canvassed, did
] the acts that are complained of constituting
criminal Ohense.
Now there is undoubtedly very strong in
4 ference from these facts that this was a pnblic
election held for the election of public officers
under the State uthorty. A very strong argu-
ment may be deduced from these facts which
are alleged and which circumstances that
generally accompany the holding of public
election-that the grand jury meant these
charges apply to elections of that kind. But
we conceive that that is not sufficient; that the
law requires directness and certainty in the al
legation of an Offense. We not aware that
the courts can be obliged to go through a
process of reasoning to ascertain whether a
certain fact necessarily forming constituent
element of an offense as charged in an indict-
nrent: we are not aware that there are any pre-
cedents in this court, of similar nature, and
we think it proper in the outset in establishing
the presidents, that should require that d.
rectness and certainty to charges of this kind
that seem to be required by our statute, and
which have always been required under the
common law in cases for indictments for Grim
lnal offenses.
There have been two before the Su-
preme Court OF this State of a similar kind. In
both of these cases the indictments charged
distinctly in one case that the election was held
Tor the election of State and county officers,
and in the other, that the election was held for
municipal officers under the charter of Still
water.
This objection going to all of these indict-
that careful consideration to the other obiec-
tons that were raised which we should other
wise have expected to give them. We have
considered them, however, with reference to
our duty in another respect.
1t is provided by statute that Judgment in
favor of the defendant upon demurrer to the
Indictment shall be bar to any further prose-
cution unless in cases where the Judge being
of opinion that the objection urged to the in
tlictment may be obviated in a new indict
IN thn b.
sent to subsequent grand Jury.
We consider it duty in cases of this
kind to inquire into objections for the pur-
pose Of ascertaining whether it is proper for
the court in the case at hand to send the case
back to another grand jury. We are of opin-
ion that all of these objections taken are of
such nature that they be obviated by
another indictment. 1t is very strongly to be
inferred that the court is at liberty to look at
these indictments argumentatively and that
there facts here charged constitutinp a
public offence; that is facts which NAV be set
forth as constituting public offence, and
therefore, we deem it our duty, while deciding
in favor of these demurrers to submit the
case to another grand jury.
There Is very great difficulty in drawing
indictments OF this nature. They are not
cases where there are old and settled presidents
and where there are technical terms especially
appropriate 20 the description OF the offense,
whicd may be used, but depend upon peculiar
provisions of the statute somewhat general in
their nature, and it is matter of very great
nicely and difficulty sometimes with the
Pleader to determine precisely how the
allegations descriptive of the offence
should be made. These indictments appear to
have been drawn with great and skill in
most respects There some matters which
have occurred to the court, wherein perhaps
there might be an improvement in the indict
ments, although we have not felt it necessary,
as stated before, to give very fulland dis
tinct consideration to those matters We think
that perhaps if the Indictment charged the
canvassing of these votes secretly, it would be
proper to set forth in what manner this canvass
was secretly conducted; that there should be
allegations sufficient to show the purpose of
the proceeding; that it was design to exclude
the public, and not merely that the canvassing
was done in the absence of any person. In
other words it is declared that there was pains
taken to exclude the public from their right to
be present at the canvass. So
too. the Indictment with reference to
leaving the polls and offering wages and solicit
ing votes, perhaps it would be an improvement
and may be urged SO far the charge Of alb
sence was concerned that it was an unnecessary
al Ind i1r ~