Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-10-09
SUSTAINED BY COURT
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Continued from First Page.)
the ofhcers Of the government have gone
further in this case than to present the EVIL
oence deemed to be necessary and pertinent
to the matter and the introduction OF such
witnesses as the grand jury might have
called for the charge is. as your honor may
know. absolutely without the slightest
foundation. II it is intended to be charged
that the excitement over this catastrophe
ana that there was undue excitement in the
community there is no doubt-operated on
the minds Of the grand jury the district at
torney's office has nothing to do with that.
II is perfectly proper for my friend to make
such charge as that; but. II he goes be-
yond that and attempts to insinuate that
any undue influence was exercised over the
grand jury by the district attorneys office,
such charge would be untrue.
IL 1S not the purpose nor the desire OF
the government in this case, as your honor
may well know from the manner in which
the business of the district attorneys office
Is conducted, to try this case by newspaper
or mob law, and the government is in no.
wise responsible for the indiscreet utter
aEces or the press with reference to this
case. 1t Is the desire of the government
that there shall be a fair and impartial trial
OF tnese defendants, and in that trial we
snail develop as true the supposed false
statements in the indictment. We expect
to develop conclusively the guilt OF these
defendants. Col. Ainsworth as well as the
others.
My friend forgets the machinery of the
law when he makes these charges against
the district attorneys office Who found
this presentment7 Is not there a grand
jury whose duty 1t Is to investigate these
preser tment IN case of this kind, is 1t
rot the sworn duty of the district attorney
to prepare an Indictment in accordance
with that presentment? My friend. as an
eH-united States district attorney, knows
that there is no discretion left to the dis
tr1ct attorney in such matters
have said all caro- to say on this SUBJ
1ect or course the government deplores
publications Of the press such as the one
we have been discussing. My objection to
them Is as strenuous as any other gentle
man could possibly be. But 1t Is for your
honor to say what shall be done to stop
this sort of thing just where 1t is; and any
action your honor will take in the premises
to bring about that result will meet with
the hearty approval Of the district attor-
Judge McCOmas' Views.
Before rendering his decision in the mat
Ter OF the demurrer Judge McComas thus
referred to the complained Of editorial:
Gentlemen. the matter which has been
brought to the attention Of the court by the
counsel for the defendants involves a gross
overstepping OF privilege. a gross impro-
priety. Whether 1t is in large or small part
the result Of ignorance or whether 1t be an
intentional trenching upon the serious and
solemn duties Of court of justice, imposed
upon the court by the Constitution and the
laws, 1 shall further consider what shall
place in which defendants charged with
oHenSeS against the law can have a fair
and impartial trial within the power of this
court. 1t Is the purpose Of this court that
Ghon hA
1t Will be the especial duty of the court to
see that clamor shall not enter into the
jury box 1t Is to be hoped that good citi-
zens. including citizens without printing
presses as well as citizens with printing
presses. will endeavor to aid the courts of
Justice In giving fair and impartial trial
In cases exciting public interest If some
shall fall short Of that plain duty, so far
as as the law permits. the court will see that
that duty is enforced.
l shall take the matter which has been
Drought to my attention under advisement
ano /! announce that there shall be, allow
ing run privilege with respect to the re-
porting of legal proceedings no effort i'm
properly made, no efforts persisted in to
influence the courts of justice and this
court of Justice In the matter relating to
TINS trial In whatever stage 1t may come
to trial. l do not hesitate to say that II
Will also be wise for counsel engaged in the
cause to confer In any matter of contro-
versy here and settle any differences aris-
ing, SO that counsel and court may aid one
another In determining the rights of the
defendants and maintaining the dignity of
the court.
have asked counsel for the defendants
and Tor the government to be present this
morning after the able argument in sup
port OF this demurrer, and after considera-
ton Of the authorities cited in support OF
the Indictment and in support Of the de-
murrer that l may announce to You the
conclusions OF the court thereon.
Demurrer Overruled.
Judge McComas then proceeded to an
nounce his decision in the matter of the
demurrer filed against the two indictments
as follows:
In support Of the demurrer to this in
dictment the fourth objection is that: THE
indictment upon its face charges criminal
responsibility upon several for the omis-
sion of an alleged joint or common duty
not exclusively the duty of any one of
common duty in the sense that each of
said defendants was charged exclusively
with the performance Of a contemporaries
GUS or successive parts Of joint or COM
mon process
1t is urged that this Indictment is for an
omission by four of a common duty rest
Ing at the same time on all and each of
them; In that it is true as a general propo-
sition tnat no person can be punished for
emitting duty where some other person
was at the same time of the omission equal
ly with him charged with the doing of the
same omitted duty:
That criminal liability can only be pre1i.
Gated Of a violation Of an exclusive duty.
and ~'
That as the indictment alleges a speclf,c
DUTY resting upon each and all of the de-
remnants at the same time. 1t on its face ex-
cludes the case of an exclusive duty on any
one OF them. Therefore. the indictment
discloses a case where no one of the de-
PENDANTS is crminally liable.
1 believe this is not the law The texts
of Wharton and Of Kerr on homicide do
say that:
Where responsibility exclusively i'm
posed on the defendant is such that on
omission in its performance is casuaiiv
followed by an injury to another the do.
PENDANT is indictable for such omission"
Exclusive" duty herein Is equivalent IN
q duty specifically" imposed. A "persona, ;,
an especial" IAN undivided" duty. a dntv
mot including or not pertaining to Others :,
Several cases were cited by Judge No
Comas at this point.
Continuing, he said: 1.-The Indictment y.
fore me seems to be framed upon ths a.,
dictment in that case. People VS.. Rudden-
sieck.)
Each defendant, as in the case NJ I,,a
densieck. is charged with a .luty common 70
all, and with the omission of such dut
common to all. and with the doing of m
act Of commission common to ali. coinci.
dent with an omission common to lll.
1.-THE pleader may, by reason of the ioin-
der of four. encounter grave difficulties
upon the proof but hold upon the author.
tiles that the fourth objection is not we'll
taken.
Hereby, the first objection, viz: ~rbat
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