The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-26
Continuation of the Argument on the
Appeal of Coy and Bernhamer.
Justice Harlan Listens All Day and Until Late
at Nightto Long MINDED Speeches of the
Lawyers Employed in the Case.
A Decision Will Probably Be Delivered
To-Morrow; If Not Then, on Tuesday.
Permission Is Asked BY Their Attorneys for
the Prisoners TO Spend Sunday with Their
Families, but 1t Is Refused Them.

The argument before Justice Harlan for a
writ of error in behalf of the convicted election
eonspirators was continued yesterday morning,
on all the tedious questions which the prisoners
attorneys have heretofore used from the ex-
animation before United States Commissioners
Van Buren, more than a year ago until sentence
was passed and the motion for new trial over
ruled All relate either to technical construc-
ton of the United States and Indiana election
laws or to methods of procedure, with the qnes-
zion Of jurisdiction overshadowing all The de-
PENDANTS lawyers accept Justice Harlan's de-
cision this point as far as it
kapplies to the United States grand
tjury returning an indictment. but they
claim that conviction secured upon facts of
! a crime of which the United States has no juris-
! diction. In seeking to establish this. however,
I they frequently controvert, it seems, their first
position in accepting the Coy habeas-corpus de-
eision Law, by persistently setting up that the
Indictment as to conspiracy is not good and that
the government cannot take any coenizance of
IT. because nowhere in the indictment nor in
the evidence does aything appear that
J the election of Congressman
affected by the forged tally sheets.
For a long time, yesterday, Judge McNutt, in
sdweIt on this feature. He covered every posi-
BILE phase which he deemed would be Of advan-
tage to his clients. He would recur to it often
kby connecting it with some other feature of law
I or fact, leavine his hearers with the impression
that the hopes of the defense. after all, rested
ION a review of former decisions as to jurisdic-
ption.
In developing this idea he continued his views
sas to the Indiana election laws by stating that
sup to 1876 the chief duty imposed upon the in
spectors of elections was to lock mp the ballots,
(which were then regarded the best evidence
OF election. But after this, expressed In Sec
ton 47l2. it made the duty of the board of
election judges to make out certificate, which,
ltoeether with one Of the lists of voters and oce
Eof the Wallpapers, shall be deposited with the
inspector, or with one of the judges selected by
1.-THE board OF judges. Assuming that the gov
lernment has adopted this law as its own there
could in this case be crime either against the
hcovernment or the State, for the section
lis directory, and not mandatory. To bring
Ia crime under it there must be
Kan Interpolation of command that such things
must be done. for that command does not APP
|. Del ar in the section. There have been construc
tions to that effect placed upon it by the
/ Supreme Court of the State. and those construc-
\
intents and meanings. for adoption of State
law must be oneris. But Section 4713,
which relates to the inside papers and how they
shall be treated and disposed of by putting
them in bag with the ballots. which bag
is to be sealed and locked in the
ballot. box and then by the inspector
delivered to the county clerk is mandatory 1t
explicitly sits what the board of election
Judges and inspectors must do. yet its COM
(mands cannot be construed in connection with
kSection471 to make crime. This also is in
hine with the decisions of the Supreme Court of
she State. Section Alb is for the purpose of
lcpreserving the ballots and papers for a recount.
sThey conclusive to who received the
jority Of votes and has title of election. The
papers that 60 before the board of canvassers are
lat their best only prima facie
evidence of an election. The conspiracy here
charged is not a wrong per Sc, for there is
teommand. under Section 4712 upon the inspect
ors to keep the outside tally papers in their
ttody. The only way upon -sien sucn constitute
p&ion of this section can be obtained is by giving
the widest meaning to the word deposit IL the
indictment is good upon the theory that the in
custody under such construction the results
would be startling. II it is correct their parting
with the papers for an innocent purpose
20 keep thsm from spolia,ion. But if thi. cor
.struction is accepted the indictment would be-
valid after all only when il charged an affect
Hng the vote for Congressman. In the offense
charged here the simple parting with the papers
did not affect the congressional vote. 1t would
mot have doLe so had the outside papers been
entirely destroyed. MS the exclusive title to cleo
tion would be in the papers and ballots in the
sealed bags.
Judge kcNutt then proposed to discuss the
facts involved in the motion for = trial.
Justice Harlan interfered, saying that his
court could not pass upon refusal of the lower
court to grant a motion OF that kind The ap-
.plicaton for writ Of brings up only
questions of law, and the argument must be
confined to them. Judge McNutt insisted that
what he desired to submit involved
nos ses %bv facts ana Of y record should Soa
be discarded. The Justice remarked that in
civil eases questions of facts were often
sidered, as the appellate court has a full record
spread before IL. One of the counsel had
already referred TO the testimony OF Perkins be- |
log oyorthrown. That was n question for the |
jury not the court, to consider. Still Judge |
McNutt insisted that it WAS the duty OF the |
court to pass upon the evidence in connection |
with motion for new trial
Suppose there had been a verdict of acouit- |
talf Justice Harlan asked.
I'm that case" said Judge McNutt ssthere !
would be no necessity for appeal
The prisoners attorney abandoned that posi-
tion and then asserted that there is not word OF
evidence regarding vote for Congressman in any |
one of the precincts entering into the case. Nor |
was 1t averred in the Indictment that vote for
Congressman had been canvassed by the return
ing board. Without this he main aimed that no |
United States court could take cognizance of |
the Indictment, for it was jnst essential to
prove such facts No the existence OF the tally |
sheets themselves.
His next position referred 30 the judges |
charge TO the jury, which contained, he said.
vital MEASUREMENT to the indictment The
first proposition laid down to the jury was that
these men conspired with others to procure csr-
tain tally papers. ~
= what is your objection to i'll. asked Justice
Harlan
my objection is." replied Judge McNutt,
shat the indictment charges a conspiracy i
TO induce. advise, counsel and procure the in i
spectors to omit a certain duty"
Read your form of exceptions on that point"
the Justice suggested
Our objections TO the charge" said Judge
McNutt. ARE general The paragraphs in the
charge have not been numbered for the pur-
pose OK their objections. 1t more OF n dis