The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-25

cause the record of the former trial showed him
incorrectly as being present when the jury was
discharged. Bernhamer had testified in this
second trial that he had no attorney at first, and
although Judge McNutt then appeared in q do
gree for all the defendants, Whatever he did was
not binding on Bernhamer except so far as the
latter choose to avail himself of the exceptions
OF the counsel 70 the record The first trial
jury he thought had been discharged unneces-
sarily in the absence Of Bernhamer.
hat do you mean by unnecessarilyr asked
Justice Harlan.
II mean" replied the attorney. "that the jury
was discharged because no necessity was shown
TO exist for that act. The record showed that it
was by the consent of all parties bat this 10 not
true. as Bernhamer did not consent to it." Mr.
Buskirk then submitted several decisions of the
supreme Court of various States bearing on
TINS point and claiming for his client former
adjudication. passed to the for new
trial, referring to the drinking of liquor by two
Grating on verdict. He said af6davits
showed that these two unknown ju-
rors drank liquor at dinner before the
verdict was reached, and also at supper
after the jurors had come to q conclusion, but
before they mad been polled. 1t may seem to
some persons who are liberal in regard to drink
Ing that this is not very serious matter. and II
he should not De thought seeking to indulge in
levity he might say that il would not be con
sidered serious in his Honors own State. At
this the Justice smiled. while the attorney pro-
ceeded to read a number of decisions where new
trials had ana had not been obtained on account
or jurors INDUCING in liquor while celebrating
a verdict
Authorities were also presented relative to
communications being sent to jurors while they
were In deliberauon. These were brought up
TO sustain the claim that the sending OF the tele-
gram into the jury room to juror Messick was
ground sufficient for new trial, and that Judge
Woods erred in overriding the motion to that
effect
He next referred to the incompetency of testi-
mony to the tally sheets being forged. That
evidence did not relate to the conspiracy and if
it served any purpose it was to corroborate Per-
kins. But ne claimed before it could go in to
have this effect the existence of the conspiracy
should have been established. Upon that there
only the testimony of Perkins. which had
been overthrown. In this connection he said the
court below erred in instructing the jury that
the testimony as to the tally sheets being forged
was important in relation to the evidence OF
Perkins. He also claimed that tie court erred in
Instructions to the effect that no conspiracy
could have been carried out without the assist
ance of the chairman of the canvassing board.
Other points of the Judges charge were de-
tailed as being errors. he believed it to be be-
yond the provice of judge IN jury trial to
tell the jury what the evidence is But after
all, the only evidence was that the tally-sheets
were forged. and from that the conclusion ought
not to be reached that Coy and Bernhamer were
guilty, because the former had a tally-sheet in
his possession and the latter made rulings as
chairman of the board. Yet whatever the con-
spiracy was it affected only the criminal judge
of which the court could take cognizance.
Judge McNutt applied his argument to the
relations between the indictment and the Sec
tons 55lI. 55l2 and 5515 upon which it
statute or statutes are used in framing an indict
ment, each must serve for some object,
because two sections cannot be construed to-
gether to establish the same purpose OF a GRIM
inal act or intent He assumed that Section
55l5 was not part OF the act containing Sections
55ll and 5512. There occurs in it distinctive
phraseology. Upon this line the argument was
pursued in the course of which he claimed that
the purpose of Section SSH was to punish solely
Illegal voting or the omission or commission of
acts in connection Herewith by persons other
than officers of elections Section 5512 referred
to another category of crimes, those relating to
officers of registration but there was differ
ence between the Revised Statutes and the act
itself, for she word election had been inter-
poated in the former. 1t made it apply then to
acts OF omission by officers of election. as we'll
as OF registration but that account it was
redundant with 5515 Accepting however, the
Interpretation. tho section is better for
indictment of conspiracy, because it says that if
any person procures election officer to omit
a thing. which in him is declared a crime. the
officer must omit it knowingly and Intentionally
before the crime can be charged, and even then
the omission must affect an election of Congress-
man. Ii that is the construction. the indict-
ment is fatally defective.
No doubt Section 5515 is broad enough to cover
any omissions violations of the United States
law by officers of election, but that refers to
officers alone, leaving 5512 the only section upon
which to base the crime of conspiracy, and that
only when a broad construction of the interpo-
lation of the word election so as to make it read
officers of registration and election is accepted.
There is Limitation of crime in Section 5511,
anu Oolo appllos SOlely TO electlon OHcor6
CONGRESS- has right to adopt the State
election laws but the question is,
has that power been exercised Nei-
Their by act implication has she
adopted the State laws in references to these SEQ
tipns, except in that of 5515. Judge McNutt
then entered upon his review of the State cleo
ton laws in regard to making returns, and had
set forth part of his argument to establish the
that no laws from 1852 down to the
present time contemplated, under any condi-
lions. comparison of the outside and inside
tally -sheets. when court adjourned until $50
this morning. His argument will close that for
the defense, after which District Attorney Sell
lers and his assistant, Judge Claypool. will
speak 1t will probably be Monday or Tuesday
before q decision Is reached