The Canton advocate. [volume] (Canton, D.T. [S.D.]) 1877-1897, 1881-11-10

He gave the reason for seeking TO file
the information as follows: The grand
jury had adjourned till October Sd.
and what we regarded as the most i'm
portant and effective overt acts in pur-
suance of this conspiracy, had taken
place on the first; Oct. 9TH it was open;
to claim, therefore, that under the
three years statute of limitations, I'M
less proceedings were commenced in
the court before the 1st of October,
1881, they would be barred under the
statute. We were placed in the condi-
ton that if we did not file or seek to
file an information, we felt we should
not have done our duty to the govern
ment. We therefore adopted pro-
ceeding by information, subject, OF
course, to q motion to set aside.
think we may claim to be here without
being exposed to the denunciations
which we heard yesterday, of having
made an attack upon the people; OF
having undertaken to violate their
dearest rights; Brady having substi-
tuted himself in place of the people.
We have no desire under ordinary cir
cumstances to proceed outside of the
general practice in criminal cases. We
have no desire to avoid the grand Jury,
and we think we might Just as well
charge that the other side is seeking to
avoid the petit jury as that they have
to hold the charge that we are seeking
to avoid the grand jury. We have no
desire to do it, except where we can
show cause why it should be avoided.
| agree that under ordinary circum-
stances and without good cause being
shown, the proper and expedient way
| is to proceed before the grand jury.
Col. Bliss cited various acts to show
that the prosecution had a right to
proceed by information in criminal
cases, and that it had been repeatedly
recognized by congress by authorizing
criminal proceedings by Indictment
and information.
The right to file information in some
criminal cases being clear, both under
statutes of the United States and under
decisions of the courts, the question
arises whether the crime charged in
this information is one coming within
the class in which informations are al
lowable. The only possible limitation
to the right of bill of information is
found in the fifth amendment to the
constitution, has been already quoted.
That amendment prevents the filing of
information, "for capital or otherwise
Infamous crime" The offense charged
in this information being clearly not
capital, it only remains to ascertain
whether it is Infamous.
Bliss gave numerous citations of de-
cisions as to what crimes are infamous,
and held that there is no case
holding conspiracy to defraud or
conspiracy generally to be Infamous
crime. We therefore say broadly that
a conspiracy to defraud has never been
held by the court to be an Infamous
crime, and that had any passages in the
textbooks which seemed SO to hold
are not intended to apply to any con-
spiracies other than those which are
based on misapprehension of the cases
cited to sustain them. 1t allows that q
conspiracy such as is charged in the
case before the court is not an Infamous
crime, but if the court should regard
the question as doubtful, safer and
fairer way is to allow this case to pro-
coed. Task that the accused be protect
ed and those Of the government saved.
If there is a conviction the higher court
will protest against the enforcement of
the judgment if its very basis is adj
judged illegal. On the other hand, if
there is an acquittal, injus tice will be
done and defendants will obtain what
they insist is their due. Section $40
declared. eff two Or more persons con-
spire either to commit any offense
against the United States in any man.
ner or for any purpose, and one or
more such parties do any act to effect
the object Of the conspiracy, all parties
to such conspiracy commit crime"
The information certainly charges
crime against the defendants, and SUBJ
mitted its charges of such crime in a
legal and proper form. The prosecl-
ton claimed the right to come here
and ask for conviction on the ground
that Brady, being intrusted with dis
erection, did not exercise it honestly
and in good faith; that he did not ex-
ercise it in the purpose of the people
and for the good of the government,
and that ne knew he did not. Bliss, in
conclusion, combatted the propositions
submitted yesterday by counsel for the
defense.