Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1883-12-20

said that the statute provides that every
one who has committed murder with ex
pressed malice is guilty OF murder in the
first degree aid where it was committed
without that malice they are guilty
OF lesser degree. He oontended that
the Indictment was drawn strictly
10 accordance with law and the pre-
soribed form as laid down by the best
authorities. 1t Is an established prin-
cipie OF law that where several persons
are indicted for the same of snee, one can
be indicted as having struck the fatal
blow, and the other as being present aid.
ing aad abetting; or both can be indicted
for having committed the assault, and
one for having struck the fatal blow.
Mr. Gray spoke about one hour, and
devoted the greater part OF the time to
reading from authorities in opposition TO
the argument of Mr.. Harrington. When
he closed MIR. Sharpley made few re-.
marks and at 1920 o'clock court ad.
| journed uutil Thursday morning
Thursday at O'Clock a, M was set as the
time for hearing argument on the motion of
| L. Z. GruDb ESD, 10 quash the indictment in
the case Of George lIagany, alias Slim Jim,
who Is now held for trial under the act
passed by the last Legislature, un the charge
OF being professional thief.
Attofney-d General Gray asked that argu-
ment ON the motion be postponed until the
| February term, rs the COUNSEL had not filed
Ills reasons f1r the motion, aud also said that
he had been 80 busy himself that he had not
had the time to prepare for argument.
| MIR. Grubb said that he had notified the
| attorney-h heneral two weeks ago that he
intended to make the motion, and that,
according TO decision of the court in a
similar case, I've was not required to file his
| reasous.
The court decided to hear the argument,
| and told Mr. Grubb to proceed
Mr.. Grubb contended that the indictment
should be quashed on the ground that 1t only
charged generally that Hagany was n com
| mon thief, and utterly failed TO specify any
OF the particular facts or criminal acts neces-
| sary to constitute the offense, or to suii
ciently describe 1t, and that 1t was therefore
bad, and insufficient i'll law.
lie showed by numerous historical and
legal authorities the following That at
common Law the offense charged was recog-
nlzed as an Indictable oifense and that the
essential facts necessary to constitute and
| describe it must be always specific in the in
| dictment.
That this common law rule had been
adopted by the trainers of our State Con
sttutiOn, and, therefore, was the claw of the
lane" III this state and had been from our
earliest colonial periods to the passage of the
act OF April l7th 1888.
That III this act the Legislature had
assumed to abrogate this constitutional com
mon law principle, and safeguard of the
citizen, and to dispense with the specific
allegation of the facts essential to constitute,
and sufficiently describe the otfense of 'beng
Il common thief"
That the Legislature had no constitutional
power to dispense with any such allegations,
and that, therefore. this indictment, being
drawn IN conformity to this unconstitutional
exercise OF legislative power, was void and
should be quashed and made Of no effect
AT 10 o clock the court suspended the
| argument for the present, and proceeded with
| other business.
The trial of the case of Malissa W. Lingo
vs.. Louisa Il. Sutterlv, was postponed until
the next term, upon Mrs SutterIy deposng
that material witness resided i'll another
state and that she was unable te have her
| present at this term. lhe application for the
| postponement was made by j. ii. HUifecker,
Jr., Esq attorney for the defendant.
The case of Oliver W. EAstburn vs. Peter
| Legates was postponed on application j. Il.
NallandiBham. Esq, attorney for the defend
ant, who said that he had been unable TO
| obtain the attendance of his witnesses.
After short charge by the court, the Jury
in the mechanics lien case of Duncan Bros.
VI. James IL. Aaron retired AT 1910 o'clock.
jury was then drawn III the case Of Il. II.
| McM uhUrter & Co. Va Eli Seal. with Charles
B. Lore and larry Enmons, Esqs, for the
plaintiff, and Benjamin Nields, Esq, for the
| defendant.
Before the case was taken up, the chief
Justice read the decision OF the court on MIR.
| HarringtOn's motion FOR an arrest of iudg-
| mvut III the case Of Lewis List.
The decision reviews the arguments OF the
attorney general, and the counsel for the
| defendant, aud carefully considered all the
authorities cited for and against the motion.
| lle sad that 1t was the opinion of the court
| tnat the Indictment WIS framed III accord
ance with law, and that ii was competent for
the Jury to convict the prisoners of different
deslees of chime, aud closed by deciding that
the motion WAS uverruled.
| Austin Harrington. Esq said that this de-
cislOn only disposed OF one notion and that
there was another yet penuing, for new
| trial IN the case Of Lewis II, List
The court without taking any action in
structed Charles Is. Lore aud Harry Emmons,
| Esqs to proceed with their care.
! his is an action brought by McWhortor
& Co.. to recover sl05 with interest for a
Teapng machine which it is alleged waa sold
| to Eli Seal in Juue, 1852, and for which he
has not paid,
Charles ii McWhorten, member of the
firm, was the only Witness examined for the
| plaintiffs, and he testified to the fact Of Eli
Seal having bought the machine over one
year ago and that when he called ON him
over IA monte after the purchase he expressed
himself fully satisfied with 1t. lie WAS sub
jeeted to Il long aud strict cross examination
by MIR, Nieds, ana kept OF the stand nearly
an hour
Benjamin Nields, Esq, opened the case for
the defendant, aud after q rhort argument to
the Jury called Eli Seal, the defendant, to the
| stand
He testified that he had bought the ma
| chine, IN alleged. for 800 and Was To give
his note, payable ia II months, which would
| T.n 1tts IN, Gat,ta Hos m.
machine did not SUIT his ground, which is
very hilly, and he could not use 1t after
several efforts to get 1t to work satisfactorily,
1t was stored IN the wagon house, where 1t
now il.
at o'clock court took Il recess until .
O'Clock the afternoon.
Court reuprurn at 3 O'Clock Thursday
afternoon with Cniet Justice Comegys anG
Associate Justices Wootten and Houston
90 the bench.
Application WAS made by +. Ii
Hofr.cker, Esq., to have Judgment
entered in the foreign attachment csse OF
Henri Il. Harris vs.. William j. Thomp-
son. .
A few days ago, when the verdict Of
the jury was rendered in the first case OF
Duncan Bros. va. James Il, Aaron, Ban
smiu Nields, E-q COUNSEL tor the de-
iendsnt, moved Tor au arrest OF judg
ment, and yesterday Afternoon j il
Hofisoker, Jr., Ed, ssked the court to
order him to fife has reasons. MIR. Nlelds
replied that on a motion for an airs, oi
Judgment the law did not require that
the reasoua shOuld b. filed.
On motion Of j, ii. Hctf oker, Jr.
Ed, Judgment was entered for the plain
til in the case OF John + B-iz va. John
O'Byrue. As soon ss this business wa-
disposed OF, the trial OF the case Ot L. II.
McWhOrteT va, Xii Seal, that was beguu
cetore the noon recess, was resum d.
| Ell Seal was recalled ard stated that
I the machine which he bought from Mr.
WoWhortsr did not prove satisfactory
, and he refused to settle for it; he bOush
it in June 1882, and WAS % give his not'
. at IA mouths GU the first Of the ensuing
, September in payment
) Nichelas White testified thai he ia s
farm hand, aud il employed by hr Seal
| he had visited Mr.. McWhoTter'a store he
fore the maehtne was bought and exam
| iptd IL; it WAS what is known gs th'
8 Champion machine; they also hao {
2 Johnson machine on the pacs, and it wsi
t agreed to give them trial to see whicl
9 was the better.
r The witness was present at the t'ial
= and drove the Champion, but it did no
. work as we'll as they expected. On CROSS
/ examination by Mr.. Lore, the witness ad
= mitted that Mr.. Seals wheat was Gu
9 with it, and it was then taken and uset
/ on Mr.. Seals brothers farm.
. William Seal, brother of the de