Evening star. [volume] (Washington, D.C.) 1854-1972, 1881-11-10
THE STAR ROUTE INFORMATION.
DECISION OF JUDGE COX AGAINST 1T.
DISCHARGE OF THE DEFENDANTS ORDERED.
Mr.. W. A. COOK MAKES In EXPLANATION

Mr.. W. A. COOK MAKES IN EXPLANATION.
Judge Cox, when the Criminal Court assembled
this morning, delivered his opinion upon the
motion to quash the Information filed by the
government against Gen. Brady ct. al, charging
conspiracy to defraud the government
Judge Cox said: 'sThfS case has been heard upon
motion to rescind the order permitting the ,nfor-
nation to be filed. The reasons assigned for the
motion are such as it is insisted would have pre-
vailed against the application for leave to file In
the first instance had the defendants been offered
an opportunity to resist IT. have listened with
vast pleasure and profit to the discussion OF this
motion. Questions of deep interest have been
treated with breadth of vew,a depth OF research
and force OF reasoning, on both sides, never be-
fore surpassed in this court. should be glad in
deed to do justice TO this discussiOn-the only way
in which It can be done; that is, by careful re-
view OF all the positions maintained and combat
ted. But this is task which would require much
time and labor, whereas the view which take Of
the case dispenses me from the labor, and other
considerations debar me from the pleasure of eX-
bate w.
|. The reasons which must control my Judgment
In determining this motion lie within narrow
compass.
have no doubt that an information, although
oppression would, il authorized by Congress, be
constitutional and lawful proceeding for the prose
CulloH OI OHenCeS or Gne graUe OF m1SdemeanOr
and not Infamous; and the practice and prece-
dents In the federal courts seem to me to favor
such proceeding as legal, without express enact
ment authorizing it in cases directly affecting the
public service; and such an Information In the
FEDERAL courts corresponds in my Judgment, to
eral in England would file s'ta spOnte, and would
be filed in this country by the district attorney
OF course the fourth amendment to the constitu-
warrant shall issue except upon probable cause
supported by oath or affirmation
am also well satisfied that the question whether
an offense is infamous was determined at common
law by the character OF the oense, and not by the
punishment affixed to it. And do not think that
at common law conspiracy was an infamous
offense, unless its object was to obstruct or cor
rupt the course OF public justice. We have moth
tng ng 70 dG OF course With the popular sense Of the
sense, as determined by the decisions OF the courts
or the enactment of statutes. But whatever views
trolled by the local legislation of Congress; and
feel compelled to avoid the seductive field of
speculation for the narrower task OF interpreting
the laws which Congress has enacted for our guild
ance here.
The 5th article OF the amendments to the constt-
tuition provides that no person shall be held to an
swer for a capital or otherecise Infamous crime,
unless on a presentment or Indictment by grand
jury except in cases arising In the land and naval
forces, &C.
Section 1919 Of the Revised Statutes OF the Dis
trct OF Columbia declares that the Police Court
all offenses against the United States committed
in the District, not deemed capital otherwise In
famous crimes; that Is to say OF all simple as
not punishable by imprisonment in the peniten-
t1ary.
These two enactments constitutional and legfs-
lat1ve embrace all the OenSes against the United
States that can be committed within the District
OF Columbia, and group them into two classes viz:
those which are not capital or otherwise infamous.
The offence charged in this information must be
is misdemeaor but it must be . either i sa Infamous s
or not Infamous. II the former, the Constitution
requires 1t to be tried on presentment or indict-
ment of a grand jury. II the latter, the Police
Court has original and exclusive cognizance of it,
and it can only be tried here upon an appeal from
that court The effect, therefore, OF establishing
that this is not an infamous offence is to throw it
into the Police Court In the first instance" The
Judge continuing, said it has been suggested that
amended so as to cut off the exclusive jurisdiction,
by acts of February, 1877 and June 22d, 1874, but
he did not so understand it.
singular oversight the Supreme Court OF the Dis
trct and the Criminal Court were shorn OF all their
local Jurisdiction and the most important part OF
1877 simply to correct this error and to place the
courts where they were before the revision, and
not to disturb the distribution Of power and Juris-
diction among them as it then existed. There is
nothing in the act inconsistent as conceive, with
act Of June r. 1s do not understand eS but t. as It
gives to the Criminal Court Jurisdiction only of
such offences as are not triable In other courts
90 not perceive how 1t can be said to interfere with
1t Will very justly strike stranger that legisla-
tion which leaves an offence, OF the gravity Of
this, to be tried by court created only for the
summary trial OF petty offences against peace and
good order, is anomalous, and the inQuiryis IA tu
offence Is classified with respect to the distinction
between Infamous and mountainous crimes.
The judge reviewed, at length, the question OF
ring to the amendment to the Constitution, which
provides that no person shall be held to answer for
sentiment or Indictment OF grand jury, and said:
"But 1t cannot be successfully maintained that
special reference to the particular crimes which
heretofore ha(hbeen known at common law as cap
ital and infamous, and INTENDED to limit its safe
tablishing a criminal code could Undoubtedly
make an offence capital which was not so before,
right of the accused to invoke This constitutional
guaranty? And II Congress should choose to re-
duce an offence before known as capital to a mis-
demeanor free from the taint of infamy, could
there be doubt OF its exclusion from the opera
ton OF this guaranty? Or could there be question
OF the right OF Congress to declare infamous an
offence not before so characterized? Clearly not
1t seems to me.'
After referring to the acts OF Congress OF 1884,
present information is founded upon section $40
OF the Revised Statutes itself reproduction OF an
act of March 2, 1867, which punisles the crime de-
scrbed in the Information with penalty OF not
less than GOO and not more than siO OOO and I'm
prlsonment not more than two years. II may be
punished then with Imprisonment for more than
one gear, and the application of the before-men-
TONED legislation to such case was con
sidered by the Supreme Court in. the case
Of Of, Exparte Karstendlek, 8 Otto, ssa.
The court held that the language OF the statutes
Is certainly sufficient to authorize Imprisonment
In a,penitentary, at the discretion Of the court,
In all cases where the sentence Is for longer
term than one year; that in cases where the
statute makes hard labor a part OF the punish
ment, it is imperative upon the court to Include
that In It's sentence; but where the statute re-
qu1res imprisonment alone, the several provisions
before referred to place it within the power of the
court, ut It's discretion, to order execution of its
sentence M Eat at place where labor is exacted as a
part OF the discipline and treatment of the in
stituton, or not, as 1t pieases. Thus, a wider
range OF punishment is given, and the courts are
left at liberty to graduate their sentences so as to
meet the ever VARYING circumstances of the cases
which come before them. 1.-THE offense Is fiagrant
the peniten0ary with its discipline may be called
into requlsiion, but ii Slight corresponding pun
lshment may be inflicted within the general
range of the law"
1t Is, therefore, quite apparent that the offence
oescrloed In this information may be punished Or
~ other words, Is punishable, In the penitentiary
Whle the legislation thus referred to was In force
congress, ON the 18th OF June, 1870 passed an act
establishing the Police Court OF the District of
Columbia, with exclusive jurisdiction Of all Of
FENCES not deemed capital or otherwise Infamous,
without exception. 1t impnediy excludes from its