The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-12-29
The Ruling in the Perkins Case.
Judge Woods. after brief pause took up the
Perkins case and ruled as follows:


The Ruling in the Perkins Case.
Judge Woods. after brief pause, took up the
Perkins case, and ruled as follows:
The petitioner committed by United States
commissioner for contempt in refusing to be sworn
as witness in examination pending before the
commissioner upon an affidavit charging purport.
ing to charge certain persons named, and who had
been arrested and brought before the commissioner
with violation. in pursuance of criminal conspir
acy of the federal statutes in respect to the elective
FRANCHISE The reason given by the petitioner for
fusing to be sworn that thel commissioner
acting without jurisdiction, and his counsel here in
sist upon the same proposition
In respect to the nature Of the Office, powers and
duties of United States commissioners, quote from
an opinion of Justice Field, of the Supreme Court,
delivered on the Circuit in California in the case of
United States Sherman, End Abbott's United
States Practice. 523 the question of the district
attorneys right to dismiss case before commits
sioner over the latter's objections:
The Office of commissioner was created by the act
OF Feb 20 1872 and his duties at first limited
to taking acknowledgements of bail and afidavits.
BY several subsequent acts his powers have been
greatly enlarged Among other things he is invested
with all the authority to arrest imprison bail of
tenders against the laws of the United States which
any justice of the peace other magistrate of of
the United States exercise under the thirty
section of the judiciary act of 1889 That section
provides that For any crime offense against the
United States the offender may by any justice or
judge of the United States or by any justice of the
peace or other magistrate of any of the
United States. where he may be found,
ers in such State and at the expense OF the United
States, be arrested imprisoned baed as the case
may be, for trial before such court of the United
States as by this act has cognizance of the Of
fense." The same act also authorizes the
commissioner, upon any hearing before him,
when the offense is charged to have been commit
ted on the high elsewhere whn the admiralty
and maritime jurisdiction of the United States in his
discretion to require recognizance from witnesses
for their appearance at the trial He is TINS mags-
trate o. the government exercising functions of the
highest Importance to the administration of justice
he is an examining and committing magistrate, bound
to hear all complaints of the commission of any public
oftensa against the laws of the United States in his
districts to the offender to be arrested;
Inc into the matters charged, and summon witnesses
Tor the government and for the accused and to com
init for trial according to whether the evidence tends
or fails to support the accusation. For the faithful
discharge of his duty in these particulars he alone is
accountable. He has no divided responsibility with
any other officer of the government is he subject
to any others control
Clothed with such power, the commissioner must,
in every instance determine iudicially whether
charge laid before him is sufficient in form and sub
stance to justify arrest and investigation. This
power and duty to decide, when invoked. is iurisdc
tom and if the commissioner determines to proceed
and does proceed with the hearing. have doubt of
the rule, and believe authority has been cited to
the contrary that no witness or person having only
collateral indirect interest question the iurs
diction unless the affidavit which the proceeding
is based is wanting in substance and in
relevancy to any form of crime denounced by the
statutes as to afford reasonable color for inves
tlgatlon. On this subject see parte Watkins )
Peters, 1885, ex parte Parks 90 Z. S., 49, ex pRrte
Yarbrough. ITO U. S., 6o1; Dequinder vs. Williams
81 Ind. 456. Especially must this be the rule in
respect to examinations held in Indiana and governed
as examinations by United States commissioners sit
ting here areby the statutes of the Staten respect
to such proceedings BY Section 1859 of the Indiana
Revised Statutes. 1881 if while preliminary exam
nation is had before justice of the peace of any per-
son upon charge of felony or any other public of
Tense, it appears to such justice that mistake has
been made in charging the proper offense that he
is guilty of an offense not charged the justice shall
no tba fnh
be good cause to detain him in custody; but he must
cause affidavit charging the proper ofense to be
made against the defendant and recognize him to
swer the same and If necessary, also recognize the
witnesses to appear and testify.
These provisions are futile if, while the examining
officer turns his investigation from the insufficient and
lconceived charge to the proper and welldrawn aft
davt prepared under his direction, witnesses may
withdraw refuse to be sworn the pretense that
the first charge or had been lost in the
course of the change to the seconds
and it is claimed that the alterations and erasures of
tally and poboOks shown by the affidavit in
question: cannot support charge of crime under any
provision of the federal statutes because it is affirm
atively shown in the affidavit that the alleged
changes erasures and everything done and that the
accused are charged with having conspired to do did
not, could not and not intended to affect the
election of representative in Congress- but only the
election OF certain local oficers-crimnal judge
and coroner of Marion county. and perhaps a part
of the State Legislature If this proposition be
pletey true it follows that the affidavit charges and
consistently with the facts stated in it, could not
have been amended to charge a violation of fed
eral law, and possibly the commissioner was acting
without jurisdiction color thereof though that does
not seem to me to follow necessarily But. assuming
this to be so, come upon the theory of counsel to
the pivotal point of the argument. Do alterations of
tally sheets and pollbooks, such here charged
affect render possible and reasonable supposabe
states of fact could they affect the election of
sentative in Congressl The only instance within my
knowledge in which this question has been presented
to court for decision, in the of the United
States against ackn and Others tried two years ago
in the United States District Court for the Northern
district of Illinois For the judges charge to the jury
at the trial. see Chicago Legal News, of Feb. 2S,
1885. The crminative change charged to have been
committed in that case in pursuance of the alleged
conspiracy consisted in the change of the ally-sheet
and appendant certificate after deposit in the clerks
Office and before the official count In respect to the
number of votes cast for opposed candidates for Stare
Senator and in the substitution of forged ballots
to the changed tallysheet instead of the
like number of the true ballots returned Herewith.
The ruling of Judge Blodgett as / understand as
charged that under the circumstances alleged in
the information before him, such alteration or
forgery of the tallysheet punishable under Sec
tons 5403, 5511 and 5512 of the federal statutes
read extract from the charge which supplies
succnct statement of the substance and bearing of
the sections named
by Section % II United States Revised Statutes it
is made offense against the United States for any
person who has any duty perform in relation to an
election of Representatives to Congress- in
tanning the result thereof, in giving certificate
document in relation thereto, to knowingly violate
any such duty to do any act unauthorized by law
relating to or affecting such election the result
thereof and for any person to aid counsel procure or
advise any such violation of duty. Section SOIL Re-
vised Statute, United States, makes it an offense
against the United States for any person to knowingly
interfere with officer of election at which Repre-
sentative to Congress is elected, by any unlawful
induce any officer of such election whose duty
it is to ascertain announce declare the result Of
such election, make any certificate, document OF
evidence i'll relation thereto, to violate refuse to
comply with his duty, any law regulating the same
while Section 5403 makes it offense for any person
to wilfully destroy any paper, document or record
deposited in any public Office. The statutes of I'LL
nois impose upon the county clerk, and upon his dep
utes the duty of safely keeping all the pollbooks
taysheets and ballots delivered to them by the judges
of election. The county clerk and his deputies were
therefore, persons having duty to perform in regard
to this election for Representative to Congress. So
you will readily that the oense charged in this
is conspiracy the parof all these defendants
to violate Section 5512 by inducing defendants Bieh
and Gleason who Lad duty to perform +, regard to
these evidences of the result of this election
perform such duty and by conspiracy to AID coun
sell procure or advise such officers to neglect theip
duty and thereby enable some person to spoate and