Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-10-05
Mr.. PERRY ARGUES
For the Defense in the Ford's Dis
aster Case.
CLAIMS WEAKNESS OF INDICTMENT.
Mr.. Taggart and Mr.. Perry Cross
Swords on a Legal Point.
ARGUMENTS TOBECONTINUED

Perry resumed his argument this morning.
Mr.. Perry said the life Of the law was the
great principle Of reason which underlies
1t. but. judging from the arguments of the
government. 1t seemed that the counsel for
the other side had forgotten that very i'm
portant thing. The government had mis-
judged the real reason and purpose of the
authorities quoted on both sides. Despite
their contention manslaughter was said
Mr. Perry. still felony in this jurisdiction
That being SO. where death resulted from
negligence the general rule that in malic-
ious manslaughter all were principals ceas-
ed, and only those actually doing or pres
ent aiding in the doing of the criminal act
could be treated as principals. The Others
said MIR. Perry, II guilty at ALL were guilty
as accessories before the fact, and as such
they must be separately indicted, and only
tried after the conviction of the principal.
But suppose. continued Mr.. Perry, that 1t
were true that I'm manslaughter all con-
cerned were principals, then 1t came to the
broad question: For what acts Of COM
mission is man not under disabilities
reponsible? The answer was, said Mr.
Perry. that he is o. primarily and directly
ahswerabie for his own acts and for their
usual and probable consequences; CD he is
also as responsible for the acts Of others
Whlcn ne aids. abets, procures or COM
mands. and for the usual and probable
consequences Of such acts. and CD he is
Iurther as responsible for the acts of others
who are associated with him in some COM
mon scheme of action, If such acts are of
PROBABLE commission in the carrying out
Of such schemes
But In the first instance only Scott. Burl
Dant and Pullman could be indicted. in the
second Thorpe and Ainsworth could also
De Joined with the foregoing only upon the
turther hypothesis that the digging under
the pier In an improper manner was the
consequence no dnin <,P
work under the contract and specification
But that hypothesis. said Mr. Perry. was
untenable. for neglect was not to be presum-
ed. And the third hypothesis was equally
untenable for where men were actually en-
gagged In the doing of an illegal act II one
went further and committed q crime not
probable incident to the common purpose
.he others were guiltless of that crime In
~. .ne case at bar the digging was legal, and
tnat was the EXTREMIST common purpose
All had. Only the actual negligent digging
was illegal. but. claimed. Mr. Perry, that
common purpose
Contending that in no manner was Col
Alhsworth responsible. Mr.. Perry said he
was at loss to understand why he had
case 80 ~
In answer. Mr.. Taggart declared that
Col. Ainsworth had been given no undue
prominence In the case. for he had been
Snar t simply as he would have been had
ne peen named Brown, Smith or Jones'
he was charged not as Col. Ainsworth
an army officer. but as a man duly con,
nected with the work, subject to common
sense care and common duties. and he
could not escape the result of his neglect
because he happened to be an army officer
What They Know.
MI. Perry said that Mr.. Taggart had
IN no sense answered his inquiry and he
could but say that there were other an
swers suggested for Col. Ainsworth being
SO prominently put forward.
There were other reasons. replied Mr..
Obliged to further disclose it's case.
Mr.. Perry-We know all of them.
Mr.. Taggart-No; I'm inclined to believe
not from what you have said.
Discussing the degree of the alleged
responsibility OF the four defendants Mr..
Perry commended that their duty in the
premises was not common duty. II 1t
had been 1t would have been proper to
have inquired whether actual circumstances
rendered 1t temporarily exclusive upon one.
and the inquiry should have been con-
tinued to fasten. II possible separate and
consequential duties upon the several per-
sons guilty of the negligent omission. But,
urged Mr. Perry, in any event there would
certainly be clear definite liability on the
part Of the person whose duty 1t was In
the first place to remove the pressure on
the pier before digging, and whether that
liability could under any circumstances
extend further, criminally. was the Ques-
ton at Issue.
Replying to an inquiry Of Mr. Perry, Mr..
Taggart stated the position of the govern
ment to be that, where a common duty
was Imposed or assumed, the persons re-
sronsible could not diferentiate their COM
mon duty to escape the result Of their neg
ligent omission.
Asserting that a man is responsible for
his own acts only. Mr.. Perry stated that
a man could not be made responsible for an
act or omission which was not his own or
which he did not in some way advise or
direct, unless 1t was the probable conse-
quence Of an act or omission Of his. 49,"
said Mr.. Perry, put the case as you can.
you can never make my omission the cause
Of his. or his probable result or sequence
of mine"
Stating that the indictments were fatally
defective because they charged both COM
mission and omission. Mr.. Perry declared
that in the charging part Of the indictments,
the most substantial and important part Of
them. there was an utter and fatal failure
to alege a single fact which could be trav-
ersed. And, said Mr.. Perry. to construct
from the language of the indictments any
definite charge. resort must be had to ar
gument.
1t was undeniable. claimed Mr. Perry,
that the indictments were for an omission
by four of a common duty. resting at the
same time upon all and each of them. and
that very fact. he asserted, disclosed a case
which was dispunishable. While 1t might
well be that other facts existed which would
Hdke the case inherent from what the
pleader had stated 1t to be in the two in
dictments. the pleader could frame no in
dictment to cover 1t. for there had BEEN as
the pleader had stated the case asserted
Mr.. Perry. no crime.
At this point, 1855, a recess was taken un-
til 1:30.
After Recess.
Resuming his argument after recess, Mr.
Perry emphasized the great Importance of
certainty in an indictment. and said that
the cardinal principle of the law was that
the pleader in criminal cases must clearly
aver and not argue. He then referred to
the case of the United States against Bar
ber.- where the Court in General Term of
the District decided that no degree Of en-
phasis Of the mortal act Of the defendant
will suffice to allege that the deceased did
die The allegation, to be sufficient in law,
must clearly state how and by what means
the deceased met death at the hands Of the
defendant. That Is, said Mr.. Perry the
homicidal act of the defendant should he
clearly alleged. The effect Of the courts
decision, explained Mr.. Perry, was that
conclusions Of law did not supply defects
in allegation Of facts, and that was true OF
the case at bar.