The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1889-01-23

u
/ side and beyond suggestions that arise In the
evidence brought before you to establish guilt,
/ or hunt up matters OF defense. The rule is
/ that the grand jury investigates the side Ofthe
/ government. OF course II is proper for the
grand jury TO bring before it all witnesses of
/ given transaction who are not implicated as
/ guilty ones or strongly suspected of being
| guilty. 1t is not customary, and rarely
/ can be proper, 10 admit an accused into the
/ presence Of the Jury although it happens. and
/ may happen that one who ought to be accused
/ does get before the grand jury as a witness.
| In respect 10 these matters the jury must be
| left good deal TO its sound sense. But com
| ing directly 10 the question OF conflicting evi-
dence. OF course the ultimate thing for the
| jury to determine is whether there is a strong
| probability OF guilt. If witnesses of credible
/ ity and disinterested come before you, aud one
swears upon one side and another upon the
other, OF course It produces difficult situation.
But 1t one OF tile witnesses is disintereSted and
speaks candidly and fairly, and the other
/ shows bias and prejudice and unwillingness to
| speak candidly and freely, then OF course there
/ is no trouble in determining which one OF
those witnesses you should follow. And If
upon the whole evidence brought before you
in respect to any matter there is strong proba-
bility OF guilt, the jury ought TO indict and II
there are matters of defense or a matter OF con-
tlict OF the character just mentioned to be set.
tied, let it be settled in an Open-daylght trial
where both sides are to be heard.
One other matter that one or two jurors
| spoke 10 me about; that is, the relations of the
! jurors to the district attorney. / have ex-
| planned that before. The district attorney has
right to be in your presence to examine wit
| nesses and after the evidence in the case Is IN,
TO explain the bearing OF the evidence in the
| light OF the legal propositions involved in any
particular charge, and then after that is done
the province OF the district attorney is to with
draw and allow the jury TO confer among them
selves as 10 whether they will find an indict-
ment or not.
Judge Claypool-There is also the propo-
sition which forgot TO mention to your honor
with reference to the testimony OF the jurors
themselves.
The Court-Where it is proper you may ex-
anime one or more of your own number who
may happen TO have knowledge of any matter.
/ You may swear one OF your own number and
compel him 70 testify, or permit him TO testify,
as the situation Is, on any subject OF which he
| has knowledge. In tact, the original idea OF
| juries was that the jurors came together to
| deliberate on the results OF their own knOwl-
| edge; and that was So IN sense, OF trial
| jury
In respect TO another matter have prepared
an instruction that will give you in writing.
Just before your last adjournment | was In
| formed that you desired instructions upon the
| question whether or not ii the evidence showed
/ that letter, or circular, containing advice to
/ bride others, was sent by mail or otherwise by
one out of the state TO one in the state, whose
Il
| dictment could properly be found describing
| such person as one whose name was unknown.
IL is familiar and proper practice where the
| evidence shows the existence and identity OF
I a person. but not his name, TO describe hu in
/ an Indictment as one whose name is unknown;
/ and, If your request had meant no more than
/ that, it might nave been answered at once.
| But II implies more. 1t includes proposition,
/ which, though embraced in the charge given
] when you were imDaneted. was not stated with
| As % hp bendp0-
| by lawyers, nor, perhaps by Them unless they
had given especial attention to the subject
| The matter was left in this shape for the pur-
| pose OF investigation, not because in the opin-
| ion of the court there was any room Tor dis
agreement, but because the court had learned
/ that counsel for the government and another
/ gentleman of high standing in this state as
/ lawyer and citizen had adopted view differ
/ ent from my own. And as these gentlemen
! placed upon the statute more stringent con-
/ stTuction than mine, and one which might tend
/ more efficiently TO guard the elections and the
! elective franchises from pollution, it was
! deemed proper TO say TO you nothing more eX-
! plclt on the subject until the question should
! be investigated and determined so far as prac-
! Jcable on authority. Besides il was possible,
| and may yet be, that your discoveries may be
] Tor have beenl such as TO make the matter COM
/ paratively unimportant
! The question on which there is this difference
! OF opinion between the court and counsel for
the government has reference 10 the force and
/ meaning to be given to the words "Gids, cOuIl-
Seis, DrOcUres or d4UiSss, used in sec. SSH of
! the revised statutes; and It is whether or not
! one who "counseisf or advises another m
/ commit a crime may be punished though the
I counsel" or "adYice" be not acted upon and
no attempt made TO act upon 1t by the person
/ advised.
! This is Of course a question of construction
/ and Interpretation to be resolved upon cOnsId-
| e.atiOn OF the chronological and ordinary mean
| ing OF the words, the ection in which they
/ arc found and the technical or LEGAL signifi-
| canoe they may have acquired by use in COM
mon law. and in other statutes, and in legal
literature
To procure means more than aid; il means to
/ contrire and eded or cause They both differ
from counsel or 1,irise: and counsel while il
/ includes 0dUioe. means also mutual dyUisfa7,
/ Instructive, or The iptercbGRging o. opinions; so
/ that each word adds to the force of the
/ statute whether the disputed question be re-
/ solved one way or the other.
Bnt evidently one cannot be said to procure
I another to commit crlme which he never COM
mitted; and one cannot well be said Gii
/ another to DO something which Is never done.
nor an attempt made to do it, This being So
I aud as | understand, tits cOnceded-are not the
| words c0unse and adviSes. when found as here
| in the same sentence and connection. 10 be
considered as subject to the same limitation?
| Any other construction seems 10 be inadmissi-
| BILE and as / believe. is without precedent.
| and the word "DrOcUTes" having no appica-
ton except to a consumated act the other
words "c0tnsels" and 'G4UisCs," must ! am
| convinced be understood in the same way
the effect being, as already indicated not 70 de-
! pTive any of the words Of proper force and
| significance in the sentence, and there being
nothing elsewhere TO indicate clearly a differ
erent purpose.
a more controlling consideration, perhaps,
| is found in the use and significance Of these
words in the common law, which must always
/ be considered in constituting a statute-though
/ a statute, in so lar as it is inconsistent there
with. repeals or supersedes that law, as it does
| prior statutes and though all crimes against
/ the federal government are created and defined
4 by statute only. The definitions are however
/ read in the light of the common law and previ-
/ iOus statutes, the doctrine being, as stated by
| Mr.. Bishop, criminal Law 10. "Thot al proofs
ions Of idlD StGtUGry common, at aohateUcr SER
erGL dates established 10 be construed together
/ as contracting, GrpHRiiRg and alternating enc
another into harmonious system Of ttriSprt-
/ dsIice"
OF course congress may, If it chooses, en-
/ act statutes inharmOnfOus and inconsistent
with the general system Of national iuris-
/ prudence, but that conclusion is not to be
/ accepted, If reasonably to be escaped. Now,
| these words, aid, counsel procure, command
! GdUise and the ike are Of frequent and familiar
use in the common law, as il was at and
| before the time when this statute was enacted
! their accustomed, Il not uniform, employment