The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-26

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ment of sffidavits from jurors to this teie-
gram by outside parties. As TO those afhdavits,
the principle of law thata juror cannot ATTACK
his verdict is well settled to allow dis
cussion. The charge TO the Jurors drinking
liquor was mmaterial. for it had not been shown
that such act affected the verdict, which the Su-
preme Court OF the United States holds in re-
cent decision must be proven before defendant
can obtain the benefit OF that objection.
In regard to Bernhamer's motion for dis
charge for having once been in jeopardy, the
district attorney said it had no business in THIS
case. because the proof relating thereto had not
been made complete 1t was made to give him
the benefit of the record in the former trial, but
failing TO establish the existence Of jeopardy the
defense abandoned the motion upon Its being
overruled- No special plea were offered. nor
were special instructions asked this point
Bernhamer failed have the record changed as
to his being present when the jury at the former
trial was discharged. Thus the matter ended
and nothing more was heard of it until il came
up in the bill of exceptions.
The defense had attempted to show a disagree
ment between the District and Circuit Courts IN
reference to this case. II was not true and the
attorneys of tho other side, no doubt relied on
Judge Gresham's decision in parte Perkins
But there the questions were different, for none
now considered had ever appeared before.
"They came up in the Orange county cases" :
said Major Hostein.
I'm those cases the sole charge was that GER
tain persons had bribed voters for a candidate
for sheriff" replied the district attorney. land
can have no possible bearing or the questions
now before the court" In the Perkins matter.
he continued, the only question was that or
forgery the tally sheets. which did not affect
the congressional vote The crime of which
these men have been convicted is far different,
and it has been established beyond a reasonable
doubt He concluded with the claim that no
errors of law fact existed upon which a re-
view could be had by the Circuit Court A re-
cess was then taken until 730 o'clock in the
evening.
In the evening Judge Claypool, in the courss
or his argument. said one of the parties indicted
but not on trial put in a plea of former acquit-
tai, and relative Co this, together with the brief
submitted, he would say that recent decisions
held that jury being unable to agree after be-
ing twenty-f four or thirty hours without agree
ment did not work an acquittal. Another de-
cison held that the enforced absence of a de-
PENDANT when the jury was discharged did not
acquit him. The power of judge to discharge
jury is iurlsdictional and # the enforced
presence of defendant is essential to the exer-
else OF that power. the judge must recite 1t IN
his order of discharge. It is not in that sense
clerical record which be contra
dicted by parole evidence Judge Claypool,
reviewing the argument on the Sections DOLL.
55l2 and 55lo, said he had no hesitaucy in telling
the defense that the indictment rests on 5olL
There is. however, language in 5ol2 susceptible
of application the crime. The Supreme
Court Siebold had decided Congress could
constitution ally adopt the laws of State and
prescribe penalties therefor. This decision af-
irned the constitutiouality of Section 55l5.
which covers offenses committed by officers of
elections. If Congress do this in regard to
officers, it can also do 1t in reference to ind-
viduals. and when one CONES to coDstrue these
statutes he ought to do it literally. The defense
claim that a liberal construction mas been forced
upon revenue laws. but that it cannot be done
with election laws upon which rest the very
foundation of the government
In considering the mandatory character OF the
State election law, in reference to the outside
papers he argued that the law before 1881 Was
identical with the one of that year, and the
Legislature did not intend that these papers
should be loosely kept. liable to fall in ybodys
hands. Here is the law demanding that these
papers shall De deposited with tae inspector, de-
posted for safe keeping, and when once nnlaw-
fully passing out of his hands, Section 55l5 steps
in and fixes the crime as to the officer as does
Section 551l in regard to the person who induces
him to surrender the papers. That is all there
is in the
He asserted that Judge Woods. in his charge
to the jury correctly stated the character of the
crime in giving the substance of the Indictment,
and thereafter a brief summary of its features.
1t was the duty OF a judge to do this. not IN the
Ian guags of lawyers, but in the language of the
law, and that. too. in words to make it clear and
plain to the Jury. That is what Judge Woods
did, and he left the question there for his
Honors Judgment. Speaking of the question of
Jurisdiction, ne said it had been claimed that
here was a new thing, the enlargirg Of federal
power to grind down the States; appealing to
prejudicss SO that there could be hung jury.
Judge McNutr SOLICITORS to any misreb-
resentations of the defense, and claimed that
no question had been raised during the trial as
to Jurisdiction. This Judge Claypool refuted
by reading line from Judge Woods charge.
sayings at has been remarked frequently that
this is . new thing" The instructions the
jury then quoted his Honor. the Justices decs-
ion the point of jurisdiction. An immaterial
point, says the defendants; but material point
of that decision regarding the sealed bags they
say was not read. Instead. it is asserted, Judge
Woods gave his own views regardless of those
Of the Justice. This, Judge Clavpool asserted,
was not true. His Honor had given the law and
Judge Woods had instructed In accordance wi tn
it. His Honor was right, Judge Woods
right.
Continuing matters comprehepded in tho
charge to the jury, he said that Its reference to
the committee of one hundred WAS within the
law, as was its review of the incidents connected
with the Carnahan circular. The fact that Coy
sent messengers to intercept the inspectors while
clerk was taken out of the case by the judges
Instructions, and Of this tho government had the
right to complain. not the defendants.
At the close of Judge Claypoors speech Mr..
Buskirk, revertlng to the Bernhamer motion
FOR discharge because of his being once in jeop-
ardy. said briefly that he had not abandoned
that objection. Its matter became oral testi-
mony in the second trial, upon which he pre-
fsrred to rely rather than on false record from
the former trial, which might have proved
boomerang to him. 1t is not technical ques-
ton, and he believed his Honor could have no
doubt but that Bernhamer had bern twice in
jeopardy, once whom the jury disagreed and this
time when he was convicted. Bernhamer testi-
led that he had no counsel on the former trial.
Tor did he understand he was so represented.
There is enough in the record to save Bern
hamer from punishment. All through il is
SHOWN the ract tnAt tnis lS tne same case anu
same offense for which he was once tried.
Major Hostein, following for tho defense.
claimed that WITHIN six months the government
lad abandoned the position il had when his
Honor found upon the Coy habeas corpus mat
er. Then the Indictment was based upon Seq
ions 55l1 and 55l5, now it com 8 in anew, yet
u Dstantially the same resting on SSH alone.
from this on he pursued the line laid down in
lis opening argument, asserting that his famil-
arity with tho federal election laws, for he had
'ften drawn Indictments on them, gave him the
light to take the position he did
1e did 1t through earnest conviction,
believing that these men were wrongfully con-
1icted of an infamous crime. for $751; applying
- 1t does to other acts, does not make
piracy to procure the omission of duty by an
lection officer offense. This out and the
ace falls The district attorney does not
the scope of writ of error when he
aks about a new trial. IF am not wrong
aid Major Holstein, ''there will be no new trial,
Or the order will come back to the District |
,ourt to release these men, there can be no |