The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-25
ONE WAY OF LOOKING AT IT
Argument of the Lawyers of Coy and
Bernhamer for Writ of Error.
They Occupy the Entire Day and Will Con-
time To-Day-The Representatives ofthe
Government Are Yet To Be Heard.

Justice Harlan began yesterday morning, with
the courtroom crowded, heretofore, when
anything pertaining to their cases took place
At NJ time during the trial was greater interest
manifested than on this occasion. although
nothing was expected but the speeches OF at
torneys and that too. on questions which have
become familiar through frequent argument.
and several intermediary decisions. But, as in
days past there was the same promiscuous
gathering outside the bar, and that or lawyers,
business men and others within. The prison
ers themselves were there, but their presence
was not essential to the proceedings. They
ayailed themselves of the right to be in court so
that they could. doubt, get another sight
of crowd outside of Jail walls. Neither Coy
nor Bernhamer showed any signs OF having un-
dergone severe prison discipline The former
says he has gained ten pounds since his impris-
onment, but Bernhamer carries on his face
slightly perceptible traces of care and worry
which have no doubt held him back as to health
and spirits. His assertiveness and characterize
tic audacity have been subdued. During the
argument he sat at window reading intently
the Journal. while Coy. neatly dressed in a new
suit, on which his tailor had put an extra touch
In honor of the little Democratic bosss appear
ance once more in public kept close to his attor-
peys and listened without break in his atten-
ton to the two hours speech Of Major Charles
L. Hoistein.
The application for writ OF error In based
upon the claim that the Indictment is INSULT
Gent. because it does rot that the forged
tally sheets affected the vote for Congressman
This revives the question of jurisdiction, but
throughout the application it is asserted that
many objections were made to questions of
facts introduced in evidence during. the trial,
and that the district judge erred in everything
O motion for q new trial IL support of the latter
the statement regarding the telegraphic COM
munication to juror Messick while the jury was
in session, the charge that IL Influenced the
verdict and other matters which have been
given in detail were set forth. With this appli-
cation was submitted the record of evidence,
covering more than 1000 pages.
A few minutes after 10 o'clock the argument
was begun By Major Holstein, who said that
prior to the act of 1879 no. appeal or writ of
error in federal courts could be taken in Grim
iual cases. The defendants had to stand by the
finding of the trial court; but that act recognized
the right of an appellate tribunal to pass upon
the errors of nisi prius courts. Ordinarily.
writ of error goes as matter OF course, but
under the United States statutes in criminal
cases the issuance OF writ can only arise when
the errors are important and the questions diff
fcult This has legal history, and that
tho legal questions which have attended it
difficult shown by their transferrence to the
Circuit Court. The errors are important. because
the prisoners have hanging over their heads
sentence to Imprisonment The questions were
and difficult, because they touch upon the
jurisdiction of the government. When one of
the defendants applied for writ OF habeas
held under bail only on Indictment. He had
never been arraigned Major Holstein did not
think il was the proper way to test the indict-
ment, but it had been DONE The defendant
was brought to trial and convicted, and now it
Is asked TO have the same question decided in
review
The attorney said the federal courts have no
Jurisdiction Of common law crimes. They de-
rive their Jurisdiction In criminal cases from
statutes, and il anybody should know upon
have been brought it should be the government.
Up to this time the defendants in this case do
not know under what statutes they have been
and he himself had not discovered it
after q long and patient search. The defendants
have right to know what statute
they have violated 1t is not enough
to refer, to the Revised Statutes, and
the statute upon which this case is based can be
found He paused for answer. but none
coming he said: IF the governments attorneys
right to a writ of errorf' Again asking for the
section of law under which these men have
been convicted. Judge Claypool of the govern
ment's side, replied, Proceed, SIR At the
proper time we will show YOU"
mo, sir; no. cir said Major Holstein. ''We
must insist upon an answer now. Two citizens
stand convicted of an Infamous crime, and they
have right to know now Will your Honor
instruct the government to answer3"
Make your argument replied Justice Harlan
Sin your own way"
Mr. Major. however, repeated his assertion that
the government could not or would not tell. when
the Justice told him to proceed in the usual form
Of argument. The attorney then said he would
be compelled 10 argue as to all three of the Sec
tions which be presumed entered into the case.
These were 5511. 5512 and 5515, and upon one
Of them, or perhaps all. the Indictment was
based. IL IL was 5515, no offense had been COM
mttcd because that section applies only to Off
;ers of election, while 55ll applies exclusively
10 offenses of other persons at cleo
lions. but the defendants are charged
procured election officers to commit a crime,
Renee that section would not answer. 1t applied
10 persons not official who had committed acts
made n crime by il, but the government gives
This section a wider scope than is allowable.
Section 55l5 refers TO crimes at the registration
of voters and for elections At which Congress-
men are to be elected. In developing this point
,e quoted long line of authorities 10 show
hat the government had indicted these men for
crime implied in Section 55ll. No person
ould DO subjected to crimina! statutes by I'M
,lication. He must be brought within the spirit
md the letter of the law IL it was as to
he spirit and not the letter the accused must
10 acquitted. IL as to the letter and not the law
10 must go free. There can be no constructive |
feuse. 1t must be clearly defined by the |
tatute
He then dwelt on tho claim that the Indiana
aw does not impose any duty at all upon an in |
pector in regard to the outside tally sheet, ex-
ept that it shall be deposited with him and by |
lin delivered to the canvassing board AS to /
he inside paper there can be no doubt. His |
uty in relation TO that is distinctly set forth. |
As to the outside paper there is duty partly
and partly implied, but crime can
lot be based upon implication There must be
10 room for construction, Inference or inserpre-
alton.
Continuing, he said the essence of n CRIME
vas the intent. and yet in the Indictment there
ktReRf Go ShAuU has &C.
ended to affect the vote for Congressman The
ntent must be both averred and proved before
onviction can be secured. From this he
assed TO the question Of jurisdiction. which he
Maintained could not exist the crime per-
ormed did not refer 10 q congressional election
r the vote for congressional candidate. In
oncluding he said the government had invented
crime at time when public indignation and
xcitement ran high over the preparation of tai
y-shees alterations which all good citizens con-
emned. criminal statute had been built up
ut of two words, deposit" and deliver
hch alone described the duty of inspectors as
their outside tally sheets.