The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1881-11-05
COSTLY CONSULTATIONS.
Second Days Proceedings In the sta
Rnuta CaSal

dressed the Court on behalf Of the Govern
ment. He gave the reasons for seeking tC
file Information Us follows
The Grand Jury had been adjourned
until the third Of October, and what we re
garded us some most important and effect
i've overt acts in pursuance Of this conspi
raCy had taken place on the fst Of Octo
Der. 1t was open to the claim that undel
the three years statute OF limitations, un
less the proceedings were commenced in
court before October lst, 1881, they would
be barred under the statute. We were
placed in such condition that, II We didn't
lille, or seek to file, information, we felt thai
we should not have done our duty to the
Government We therefore adopted the
plan Of proceedingby information, subject
Of course, to mOtiOn to set aside, think
that we may claim to be here without be.
ing exposed to the denunciations which We
heard yesterday, OF having made an attqck
upon the people-0i having undertaken IA
violate their dearest rights Brady substitu'
ting himself in place Of the people,
We have no desire, under ordinary cir,
cumstances, to proceed outside Of the gen
eral practice in criminal cases We have
no desire to avoid the egrand jury, and we
think we might just us well charge that
the other side is seeking to avoid the petit
jury as that they should charge that we are
seeking to avoid the grand jury. We have
no desire to do Il, except where We can
show cause why 1t should be done. agree
that under ordinary circumstances, and
without good cause being shown, the prop
er and expedient way is to proceed before
the grand jury. Colonel Bliss cited various
acts to show that the prosecution had the
right to proceed by information in crimi-
nal cases, and which had been re-
peatedlY recognized by Congress by
the authorizing OF criminal proceed
ings by indictment or information.
The right to flo information in some Grim.
inal cases being clear, both under the stat
utCsof the United States and under decis.
ions OF courts, the question remains
whether the crime charged by this infor-
nation Is one coming with the class in
which inforlnatiOns are allowable. Only
possible Limitation to the right to file in
formation Is found in the fifth amendment
of the constitution, already quoted. That
amendment prevents the filing OF iniorma-
ton "for capital or otherwise Infamous
crime" The OlIense charged in this infor-
nation being clearly not capital, 1t only
remains to ascertain whether II Is imam.
Gus. Mr.. Bliss gave numerous decisions
as to what crimes arg Infamous, and held
that there is no case holding that conspira.
Cy to defraud or conspiracy generally to be
IN infamous crime. We therefore say
broadly that conspiracy to deiraud has
never been held by the courts to be an in.
famous crime, and that any passages in the
text books which seem to 80 hold
are not intended to apply to any
COnspiraCies other than those which
affect the administration OF Justice or are
based on the misapprehensi0 OF the cases
cited 10 sustain them. 1t allows that con.
spimcy, such as is charged in the case be-
fore the Court, Is not IN infamous crime.
But itthe Court should regard this ques-
ton as doubtful, safer and surer way is
to allow this case to proceed; all rights OF
the accused protected, and those OF the
Government saved. II there Is conviction
the higher court will protect against the
enforcement Of Judgement II its very basis
Is adjudged illegal. On the other hand, II
there is aCquittal no injury will be done
and the defense will obtain what they in
sist is their due. Section 5440 Of the Re.
vised Statutes declares, "ff two or more
persons conspire, either to commit any
oiTense against the United States, or de.
fraud the United States in any manner or
for any purpose, and one or more such
parties do any net to effect the object Of
conspiracy, nll parties to such conspiracy
commit Il crime"
The information certainly in terms
charges this crime against the defendants,
and II Is submitted, II the charges OF such
crime are in legal and proper form, as the
prosecution claimed the right to come here
and ask for conviction on the ground that
Brady, being intrtisted with discretion,
did not exercise II honestly and In good
faith, that he did not exercise It in the
purpose Of the people and for the good Of
the Government, and that he knew he did
not exercise 1t in the purpose Of the people
and for the good OF the Government Mr..
Bliss, in conclusion, COmbatted the propo.
sitions submitted yesterday by the counsel
for defense.
Col lngcrsoll followed for the defense.
He said: III first call attention to the
question Of probable conviction, and in the
examination Of this question | not only
question the right, but must necessarily
inquire as to the crime charged In the in.
formation itself beCause the Court must
remember TINT the charges in the iniorma-
ton were those Of atIidayits, and the aifi.
layits together with tho information were
all the evidence and all the probable cause
In this case. Edo not examine the infor.
nation for the purpose Of fdemurring to II or
for the purpose OF movingtO quash 1t, but
simply for the purpose OF showing how
much it amounts 10 us evidence. What
does 1t prove2 What Is there here charged
against my client Mr.. Brown lie took up
seriaiim and counts the information, criti-
cising and ridiculingthem as he proceeded.
His objection to the first count, Il left
10 say whether the accounts charged rela-
tive 10 eXpediting the mail service were
unnecessary, 1t was question first
to be decided by the PostofiiCe
Department whether II WIS necessary to
carry the mails one or seven times o week,
or two, three or five miles an hour. It was
not for the pleaders to say that II was nee
essary that they must set forth the CirCum-
stances, and II was for the court to say
whether or not it was unnecessary and
whether or not II was improper II had
been remarked that the mails have been
carried when the amount received by the
United States wus mere bagatelle. Was
TINT the only evidence OF extrayagance
charged Did the Government carry the
mails for the purpose Of making money,
OF did the people regard the carrying Of
the mails as one ofthe instruments Of civi.
lization? His doctrine was that the people
Of the west had rs mitch right 10 mail once
a week as his friend from New York (Hliss)
had to four distributions per day. II was
not sufficient for the pleaders 10 say the
thing was extravaganza They intiSt set forth
the iaots In order that the Court might
Judge as to whether It was eNtravagant or
not, ..f1...
MIR. 1ngersoll then proceeded 10 call the
attention Of the Court TO what he termed
Ss,K,N ,tt.rst al