The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-03-02
RETURNING BOARDGASE


Casanave, to the information In case No. 1888,
Of the Superior Criminal Court for uttering
and publishing as true certain forged pub
lie record, WIS yesterday heard In said court.
The accused were represented by Il. North
Culom anG II. G. Casteanos. Attorney Gen
eral Ogden represented the State.
| The Attorney General, In opening his argu-
ment, declared his embarrassment tho po-
sition In which he found himself placed with
reference to this prosecution. grave crime
had been alleged against the prisoners the
| gravest, indeed, that could be perpetrated
against society-a crime, the dangerous eff
fects Of which, under n republican or demo-
cratic form OF government, could not be exag-
gerated In such government as ours the
ballots Of the people determine ard control
every great interest OF society, and any i'm
proper or fraudulent interference with their
result, strikes necessarily ut the very founda-
ton OF our civil freedom. The crime charged
| In this Information is, besides, ono that Is
easily perpetratcd, and the temptation to
repeat 1t constantly presented In our frequent
popular elections. The necessity for It's pun
| shment, II our free institutions are 10 be pre-
served, Is too apparent to need argument.
|
circumstances and his high responsibility to
the people for its discharge, would be readily
appreciated by the court.
| When these prosecutions were originally
| undertaken, IL was under a sense OF the high
est obligation and responsibility. And the
question presented to the Attorney General
now was simply whether or not anything
had occuredt to relieve him from that necessity,
and to warrant his discontinuence OF the eff
fort to bring these offenders to justice. Upon
careful survey Of the whole field, he could
not find anything uron which n discharge
from his own ,ofllcia responsibility In this
matter could be predicated.
IL was contended by counsel for the ac-
cused that the decision Of the Supreme Court
In the recent case of the State vs.. Thomas g.
Anderson has settled all the questions Of law
adversely to the State, upon which the suiIl-
cheney OF the information IN this case depended,
and that the Attorney General ought, there
fore, to abandon the prosecutions; but care
full examination OF that opinion, with refer
ence to the authorities upon which 1t claimed
to rest, had failed to convince him that the
decision was correct statement Of the law,
and that while he had every disposition to
treat with the utmost respect everything that
came from This exalted tribunal, he was yet
constrained In this matter, under Il pro-
found sense OF his own personal and
official responsibility In the prosecution
OF 50 heinous crime against the on
tire people OF this State, TO press reconsid-
Grafton Of the grounds upon which the Ander-
son decision Ii made to rest, In the hope that
the error into which the Supreme Court hal
been led In that case might be corrected upon
further discussion OF the matter
III the decision In the Anderson case could
be considered res ddjudicdtd as to this the re-
sponslbity OF the AttoI ney General would be
at all end. Whether that decision was right
or wrong upon principle II could control, and
no resistance would be opposed to it; but that
was not the case The decision could not be
| regarded as In any other sense binding here
than as u precedent or authority In law, very
high In character, and entitled TO great re-
spect 4s an authority from our own supreme
| tribunal OF justice, but liable to be overrued
upon further discussion, as had been fire.
quently done In the past by this same court,
as well as by other courts the world over. III,
then, this decision is not a correct announce
ment OF law, the Attorney General would not
be- absolved from responsibility In following
1t by the abandonment OF these prosecutions,
upon the success Of which so much might de-
pend In the future.
One decision has never been considered suf-
ficient to establish the rule stare decis5s, and
particularly was that the case when, as in
this decision, the principles involved could
other commercial transac ions which would
be affected by its overruiing. 1t was ON the
contrary q decision which IN the judgment Of
the Attorney General every interest OF 80
ciety would require to be promptly overruled,
unless founded upon such well established
principles OF law as would forbid Its oyerrul-
ing.
The Attorney General then proceeded to
argue the points decided ln the case OF An
deiSOn.
He said he considered 1t necessary to ex-
anime the opinion expressed by the Supreme
Court as to the character OF the document
alleged to have been published In an altered
and forged condition, although the court had
declared that it did not desire to be under
stood as deciding that point. 1t had, how
ever, presented its views 80 fully, both In the
original opinion and In that rendered upoI
the application for rehearing, that bo
ing, because, II sound, then the document
upon which the prosecution was founded. not
being susceptible OF forgery, that prosecution
ought not be pressed any further by the
State. He then called the attention OF the
court to what he considered a fundamental
error into which the Supreme Court had fallen,
at the very threshold Of that discussion. The
principle announced by the court, and which
appeared to be the foundation OF the reason
Ing by which 1t reached the conclusion that
this document was not public record suscep-
tible OF forgery, was stated in the last opinion
rendered by the court in the following words,
ana mere applies Win crushing force Jne
doctrine universally maintained by all writer's
on criminal law, that when statute author
ICES or creates an instrument not known to
the common law, and prescribes its forms and
impresses upon 1t peculiar features, in order
to support prosecution for uttering as
forged such an instrument the paper actually
forged, or uttered as forged, must conform to
the statutory description The Attorney
General contended that this proposition. as
state by the court, was not only not 'univer-
sally maintained by all writers on criminal
law" but was not, SO far as his examination OF
the subject had gone, maintained by any
writer upon criminal law.
1t was undoubtedly true that forgery could
not be committed upon an instrument in
writing absolutely void upon its face, and any
statutory instrument required by the law to
be made in particular form, and declared By
the statute 10 be invalid If made in any other
form, would be void upon its face il not made
forgery, because Of the fact that it was void.
This was the extent to which the authorities