The Portland daily press., 1879-01-13
The Winship.Swett Conspiracy Case.
Arguments on the Motions for An ARE st
of Judgment, and for New Trial.
DECISION RESERVED.

OF u udRment, ana LOf u NEW TRIAL.
DECISION RESERVED.
In the United States District Court Saturday
Judge Fox presiding, the arguments on the
motions that had been fled by the defendants
counsel ia the Winship-Swett conspiracy case
for an arrest of Judgment, and also for new
trial on the alleged ground of misconduct of a
juror were heard
TIE first to address the court was Mr.. Charles
E. Clifford, counsel for Swett who spoke SOLE
ly in support of the motion for an arrest of
judgment, on the ground of insufficieucy Of the
Indictment as drawn, he contending that the
counts under which the prisoners had been
convicted we're defective.
He submitted first that the offence is one ere.
ated by act of Congress wholly, and the alleged
criminal act must therefore be brought strictly
within the statute definitions, and precisely
what the statute has set up as the crime must
appear to be described in the Indictment accur-
ately and fully or the pleading must be held
bad, and Judgment arrested. One objection to
the suficlencyof the, Indictment is claimed to be
= the allegation IS to the date when the criminal
act was committed;l ut is not.sufficienty accurate
Another objection is that the petition in bank
ruptcy dated July 3, 1876, was found to need
amendment, which amendment is of further
date in the latter part of the month of August;
thus tbs an averment to say that the petition
was complete on the Sd Of July Another OBJ
lection is that the two counts in the indictment
on which the verdict was rendered are lacking
in many of the statute amendments of the Of
fence. There is no averment of any particular
property or sum of money that was attempted
to be accounted for. There is no averment that
the attempt to account for sproperty was un-
der oath, or while before any legal tribunal
having authority to call him to give an account
Another objection is that the wrong intent is
is alleged; it should havs bsen intent to with
hold property from coming to the knowledge of
the assignees, instead of intent to defraud
creditors. Another objection, and the principal
one, is that taking everything as true in the
description of the offence VIII CHI is set up as the
object Of the conspiracy it does not amount to
the statutory offence, which is the only thing
that the Federal court has jurisdiction of to
try and punish. The statutory offence is at
tempting to account for some property by fc-
titous loss. The allegation in the second
count is that he attempted to account for Fl ,ti-
tious property, or merely pretence of having
property, by loss of the same; that instead of
accounting for any actual property by pretend
'iug to lose it he first pretended to have some
which he did not in fact have, aud then pre-
tended to lose this pretended property legal
absurdity.
In the sixth count, instead of the statutory
offence of pretending to account for property
by fictitious loss, it is merely alleged that the
defendant mortgaged property to secure some
notes which were really without consideration
and then falsely sWore that they were on a
valid consideration, and the sam of money
which be received as loan were the notes he
lost on Boston Common. So that by these al
legations the defendant Holland is made out to
have set up as to his property fraudulent
mortgage instead of a fictitious loss And in
the sixth count it is thereby alleged distinctly
that something else than the statutory offence
was the object of the conspiracy.
Mr. Clifford occupied nearly two hours in the
delivery ofhs argument
Mr.. Bradbury argued to set aside the verdict
on account of misconduct on the part of a ju-
ror. He said the testimony was very direct,
that one of the jurymen. Samel Il. Piper, asked
witness QUE of court, in the presence Of
another juryman, the very improper question,
what kind of person the defendant, SWEET,
was, and received for an answer that he was a
tricky fellow, although some sympathy was
felt for him since he came out of the army.
This fact was sustained on the part of defend
ant by very clear statement from Leroy S.
Sauborn, clerk IN the post Office, whose appear
anca on the stand was 10 every way highly
creditable.
Again, at another time, the same jury-man
appeared to have expressed an opinion in pub
lie in the course of the trial, highly adverse to
Mr.. Winship, showing that he had in great
mark being that Mr. Winship would get no
mercy from him. This was supported by Dyer,
a member of the bar, young gentleman whose
statement can be questioned nowhere
District Attorney Luut opened his argument
by giving citations from the reports of similar
cases adjudged in the Federal and State courts.
He then commented upon the suspicious at
tached to the manner in which the motion to
set aside the verdict was drawn and filed, and
claimed that the facts expected to be proved
we're not fully set forth and that the full names
0F two of the witnesses NOT given. al
though they must have been known to Wiz
ship. Fay, one of these witnesses, utterly fails
to identify the juror charged with misconduct;
in fact, unable to swear that he talked with any
expected to back Fays testimony, was not pro-
duced
Within ten days of the hearing new wit
ness is discovered by Mr.. Winship, in the PET
law, and formerly student under Mr.. Win
ship. M. Lunt sharply criticised his testimc-
ny, saying that Dyer violated his official oath
in keeping such information secret, while it is
not prob able that he would permit the trial to
go on, placing his friend and tutor in such peril
without disclosing the information until the
motion was about to be argued. Mr.. Lunt
claimed that this was but sequel to the origi-
nal conspiracy, and that it was Improbable that
a juror would gratuitously express such an
opinion and determination. Whatever he said
was drawn from him by design. After what
we have seen and heard during the past month,
no rascality of this nature is improbable. The
Attorney claimed that in this case the oath of
the juror would prevail against that of Dyer.
The Attorney said there had been systema-
tic attempt to create public sentiment for the
prisoners, and that the witness, Leroy S. San
born, an employ ee in the postofice, had public
ly espouse1 Winship's cause. His testimony
as to the alleged conversation in the water
closet is squarey met by the denials of Piper,
Brackett and Waterman.
Mr.. Lunt then replied forcbly to the objec
lions raised to the indictment.
Judge Fox then notified the counsel that the
briefs, containing the citations of law in sup
port of their argumentp, must be filed within
weeG, and that the case would then receive as
early attention as the business of the court
would permit.
The court then adjourned until 10 Monday
morning.