Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1883-12-20
LIST OF THE LICENSED
AND THOSE WHO FAILED TO GET
THROUGH.
A Motion TO Enter J dgemcnt in the
water Commission Cases The
wriss OF Error Ffled-rhe Me-
chanics' Lien Case.

Writa OF Error kIleu-Ine NE
chan1cs' Lien Case.
When court opened yesterday after
noon week 4. g. Bradford ,Jr., Esq ,ssket
for A rule to dissolve Au attachment helC
by Charles Green against the wages o
John Maloney and his minor children
who are employed in the Augustin,
paper mills. He made strong argument
in support OF his motion, which wsi
finally Over-ruled by the court, who de
oided that IS the oase had been ordered
for trial by jury they would not inter
fsre at present.
The mechanics lien case Of Duncan
Bros, vs. James Fl. Aaron was then taken
up and Henry Duncan who WAS on the
stand when court adjourned at noon re-.
called. He examined the books of his
firm aud identified q number of entrier
where charges were made for hardware
bought by James II. Aaron.
Richard Duncan was also examined in
reference TO the accounts and identified a
check given him by Aaron on the l9sh Of
November, 1882. They were the only
Witnesses examined.
MIR. Nisids addressed the Jury for some
leases showed that James H. Aaron had
settled his account with Duncan Bros.
He was followed by j. Ii. HoHecker,
Jr., Esq who continued until O'Clock
when court adjourned until 7 O'Clock.
The announcement that the court had
decided to hear argument in the evening In
the List case and on the motion for au
arrest Of judgment had the effect of draw
larn t.,r ~ a 1. i
all the seats we're filled.
The argument was opened by Austin
Harrington, Esq one OF the counsel for
the prisoners, at 7.20 O'Clock. He said
that he would ask for an arrest OF judg
ment in the caee of Lewis List On the
ground that the vedict was illegal, void
and OF no effect. 1t was inconsistent and
not in accordance with the facts as both
the defendants were indicted for tho same
offense and the evidence in regard to both
was the same. Under the common law,
all killing WAS murder In the first degree
and there were no other degrees until the
enactment of the statute of 1852, and a
conviction of murder in the second degree
could not have been had under the com
mon law as no suoh crime existed
This indictment was evidently
drawn under the statute, as 1t
alleges that they were both equally
guilty As principals in first degree and
second degree. Under the common law
the accessory cannot he tried before the
principal the principal must be tried
first aud found guilty aud the accessory
afterwards. This statute was passed in
the furtherance of justice, so that in case
Of the principal dying or escaping tne
accessory oould, Notwithstanding, be
tried and convicted. In this case one OF
the defendants could have been cop victed
OF any degree of murder and the other
acquitted, but one could not under this
Indictment be convicted of one degree
and the other Of lesser crime, and as
they we're 30 con nvioted, IL is fatal to the
verdict which cannot stand.
According to a number Of authorities
cited by Mr.. Harrington, the accessory is
equally guilty with the principal aud must
suffer the same punishment il conviotet at
ali. A person who is present and aids or
sbe's in the Staying OF person, Is
equally guilty with the one who fires the
fatal shot or gives the mortal blow.
The indictment under which these
prisoners were tried practically con tanned
but one count, and that charged them
both with murder in the frst degree and
felony, and, under the law, lower grade
OF crime ojuid nave been found as to
both, or conviction of any grade OF one
and an scquittal OF the o'ner, hut the
jury render,d d verdict OF first degree for
one and second degree for the other.
Now what was the effect Of that YER
dict Lewis List wac shown TO have
been present when the crime was com.
nitted then he WAS clearly not an &c
cessory before the fact or after the fact,
but principal, as charged iu the indict
ment. He Id charged with aiding, abst.
ting, procuring, commanding aud coun.
selling the commission OF the crime, aud
oil being guilty OF murder and felony in
The hrst degree. The jury fnds tha,
Lewis +. List premeditatedly and with
expressed malice aiorethought did ommit
the crime, but that Lewis List who wa
present aiding, abelting aud command
ing his son, and who, the Law says. Ii
equally guilty, was also guilty, bat OF q
different degree, and of a different intent
The indictment as presented to the
Jury says In effect that they both
nfed the pistol and the ques
tion arises, could they do it SiL
different degrees OF malice, or eau the
Jury make two crimes under one indict
mehtf The father was either present
aiding, ab-tting and commanding the SOL
or not present, aud it not, he should
have been acquitted by the jury Bu
II, on the other nand, he was present III
alleged In the Indictment, then he should
have been convicted Of equal degree o
crime, and the same verdict should hav,
applied to both. AS such verdict wai
not rendered, il was not only against th,
statute and the law, but also agains
common reason and inconsistent, aid tn.
court will grant venire fsciss de novo
The Jury would not have erred had they
acquitted one and convicted the other o
hrSt degree, second degree or man
slaughter, and had they done 30
thefe would have been sone shov
OF reason about the verdict. This voult
have showed that one was guilty of what
ever crime the jury agreed upon, and q
to the other that he was not guilty, but
Instead Of that, they rendered verdlo
that ia Inconsistent and not in aecoTdsnc
with the facts. When both were con
victed, 1t should have bsen OF the sam
degree Of crime, whatever that migh
have been, but this verdict as renderet
ID bad as to both the prisoners.
II Is undoubtedly wrong as to one, tn
court will not arbitrarily decide wnic
one, and consequently 1t is fatal and tall
As to both. II was not according to th
instructions given the jury by the court
The jury WAS advised as tv tue verdict
be rendered, and the language of til
ohief justice was clear and definite as
what proof WAS necessary to convict tn
father.
Mr.. Harrington then read the charge ,
the chief justice to. the jury. He ais
cited number OF authorities to sho
that when two or more persons are il
dicted for the same offense, they csunC
be found guilty OF different degrees (
crime. He concluded by saying that III
matter is vf the greatest Importance
The defendants, who are now III the hand
OF the court. 1t affects the life of on
man and the liberty Of another. IN
vhense charged is the highest known
the laws, and the court must take the r,
sponsibility Of seing that no man sha
be deprived of life or libert
without due and proper Leg
means. These persons look to u
protection OF the court, but can onl
speak through their counsel and ask thi
their rights, after having passed from Il
Jury, shall be taken care OF by high,
authority and higher Judgment. I'll
authority to take life and liberty is OF
always to be exercised with the mo
extreme precaution, and every saf
guard must bs thrown around Il
defendant, while positive, oonsistel
and reasonable verdict shall depri'