National Republican., 1881-11-04

lord 1fdnsdcid-1nformaon at common law
Inc coroner who did il upon any application. as n
matter Of course. The statute was, therctore made
eoar co @ has c9 a Gs sc he NJ merits o. the
person Applying for they may be under such ct crcnm
them. secoud-rhe time. Of application As TO this
yesr STS Is bu IL sG tho day must M S eso1aby ae
counted for. This consideration Us more necessary ~
enough withont ihis addition TO IT, Third-The sus-
pcious state Of the case, tr eridcntd ret
IN his WORK ON CRIMINAL INFoRMAT1oNs
at page II, Cole, speaking of informatlons that
might be filed by the master OF the crown otiice
says:
But although the court have the power to grant
ever they viii moi in The exercise OF sound dscre
tion permit such iniormations TO be filed except In
ors, riots batteries, 6eis, and other immoraos Of
an atroclous kind not peculiarly tending TO disturb
attorney -gcncral-but which, on account Of their
magnitude or pernIclous example, deserve the most
g. $. q, / Chit, Grim. IT,, s5oj Moreover the
court always considers an application for criminal m
Information rs summary extraordinary reDlsdU de.
pending entirely on their dtcretion, and therefore not
hut the prosecutor must apply promptly or must sat
iSactorily account for any apparent delay ne must
from blame with reference to the transaction com;
planned oc lie must prove his entire innocence Of
eSHi such ggai priece or e odenss iagnG Jesn com
mHcd by nc defcndan as ,cou,d edrrdnt orand JURY
he will be lett to his ordinary remedy by action or n
dlctmcnt.
MOREOVER, THE COURT ALWAYS CONSIDERED
the application for n criminal information as n
summary and extraordinary remedy, depending
entirely on their dlscretion therefore, not only
must the event itself be OF u serious nature, but
the prosecutor must apply. promptly he must ac-
count for any apparent delay. He must also come
into court with cGnn hands, aud be free from
blame with reference to the transaction com
P@ed Fl lie m pr & hs Snse
ask Your Honor to mark ths-must produce 10
the court such iegai crencc OF the oiiense having
been committed by the defendant rs would war
rant grand jury in finding true bill against the
defendant Otherwise he will be lett TO his ordi-
nary remedy by action or Indictment
IN THE CASE OF
The King vs. Willett. in Term Reports, 29i the
court refused 10 allow an information TO be filed
because the evidence offered was not legal evil
dence, and held that the court took tho place ol
the grand Jury, and could only grant an informa-
ton OH evidence that would support an indict-
ment i will read an extract from the opinion III
that case. The court refused to grant the rule be-
cause the affidavit on which itwns prayed for was
not legal evidence. They said that in these cases
| they were placed ~ The room Of grand jury, and
went on to say; "The ailidayits or the oaihs o.
| (pleaSe remember that Hatherly had carried O
| challenge for which they were proceeding against
information or the oaths Of these persons would
| not be legal evidence against the defendant, and
that this court could only grant an Information
| on evidence that would
| In the case of the United States vs. Coolidge, IL
2 Galllson, 1863, an Indictment Ind been fount
against party, and there was motion made Il
| quash that Indictment, because n party had beer
got before the grand jury in some way and hi
| testimony had been taken without oath. This 4
an instructive TO those who argue this case IL
the newspapers. saw II stated very gravely in
newspaper coming from New York, a few day
| ago II was one of those paragraphs that wa
rasping up my friend, the District Attorney of thi
court; that there must be some great deroliction
duty in this court, because, In certain other case
| which will not mention, somebody had been In
teriering
TO PREVENT THE GRAND JURY
from finding nm indictment unless there was SOM
evidence brought before the grand jury. Abso
| lutcy they have gotten to complaining of thi
court and of this Jurisdiction and its officers be
cause cause indictments are not found % BY grand jur
view of that statement, might be instructive Il
these gentlemen; Judge StoTy-of course Judg
Story In his day did not know half as much abou
law MS the editor of n New York newspaper doc
nowadays; lie could not know half as much h
lived long time ngo-but still here Is what h
said:
THE QUESTION WAS
whether witness who had been taken before tn
grand Jury, and upon whose testimony the indict
| mcnt had been found without thnt witness bein
under OATH could be sustained. Judge Story said
Lees affidavit is direct and positive rs to fact 9
which ho could not be ignorant. The counter all
davits are merely Of impressions The court must
therefore be taken 10 be stated by Lee of the 10,
arising upon these mctS there can be no doubt IN
ment aud the citizen II Is OF the highest importanc
1%S no cen bS sd SS he has SseR f
accused by the proper tribunal Every Indictment
subject to the control Of the court and this ndctmei
having been found irrcgnlarly and upon the mel
evidence, a cdsSCtur must be entered.
Now IL Your Honor please there is n case Judg
Story may not have known much law,
But THAT WAS HIS OPINION
and in his day and generation was consd
been holding this court. aud the grand Jury ha
inquired Of him in regard to a matter of this kin
Judge Story would have told the grand jury 20
cannot take anything but legal evidence, sue
evidence us may be used on trial before
petit jury. now ask attention to the case of tn
United states VS. Maxwell, Dillon. You wi
hear great deal of this case before we ctthroug
with this discussion. am only going to Glludc I
II now for one purpose
THAT WAS CASE WHERE A PARTY
was informed against for violation of the revC
nue. laws. beg that Your Honor will bear tn
in mind when you come to hear my learnc
friends on the other side discuss this case and III
associates reply TO them; but call Your Honor
attention 10 II at this point in the argument f
the purpose OF showing that the view | nm col
tending for prevails wherever you find the sublct
mentioned ut all. In this case, nier discussu
the question of what is and what is not an inf
nous crime and whether or not proceedings ca
, be had by iRfDrmdiion Judge Dillon proceeds
, follows:
, wcare of the opinion, therefore, that oflcnsos NJ
, capital or infamous may, in the discretion of n
} Court, be prosecuted by Information. We cam,
ceeI on his own motion, and sail require probb %
cause Of guilt to appear by the oath of some credit
formation ,.o to be- be-, S i,Ied ,os and a wGIra
no reason 10 fear oppressive use of inform
ton than there Is % reason e. @ far an abuse Of =
G o. Ghes s Charge Seems rs to Ss doHb
the court will refuse leave 10 file IN Information
: Jury. But tits We'll known that tie Internal rcycT
laws have created q large number of minor ofiels
the cost Of proceeding By grand Jury aud the del
u ernm nj and the defendant.
N NOW As TO THE CASE OF SHEPHERD,
in / Abbott. If Your Honor will examine til
It case you will find that there the court held tn
70 where there was an application made to file
" be for the party to be takcn-hfst, on complai
10 under oath before committing magistrate, NJ
then the district attorney might bring the col
r, mitment, the complaint, and the affidavit, befC
II the court and upon those, IL they showed q PROF
II case. the court could order the information 10
/. filed mention these two cases In this connl
ton because they show that wherever the col
has dealt with that question 1t has always requiI
the production of te0I ephieace Of the fact tina!
y party to be proceeded against had committed
: offense charged. Mr.. Chitty, In his work on cri
!, inal law, at page 3lS, uses this language:
i with respect to the kind of evidence which agra
y bound TO take the 6si legal prOor W iohteh ne
(; mits and must be gipen W'der odM,
u The written statement of witness cannot be
cciyCd in lieu OF his purOl testimony. Nobody G
e go before the grand Jury of this or any other d
~ triCt and present some mans written statement
that grand Jury, and ask them TO find an indi
ment upon that statement.
SO evidence of what third persons have said Will
~ be good support bill before the grand Inquest
r. Now, if Your Honor please,
or FROM THESE AUTHORITIES YOU PERCEIVE
VI What were the requirements of this common L
ni by which our learned adversaTies say we must
ii bOundf First. the court stood In the place of
ID grand Jury Second, no Information could be n
re bnt by leave of thecOurt, Third, the leave of
81 court would not be given without evidence S
Is ticlent to warrant grand jury In finding an
dctment Fourth, that evidence must be legal ,
"a dence. Fifth, there must be no delay Sixth, I