Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-11-11
THE ARGUMENTS CLOSED.
Court Of Appeals Must Now Decide the
Disaster Case
Mr.. Perry Closes Today and Ends the
Talk - Attacks the Indictment
VigOrOusly-Future Proceedings.

aSter or June last, is now in the hands of
the Court of Appeals, Mr. r. Ross Perry,
on behalf of the defendants making the
concluding argument this morning 1t was
understood yesterday that Mr.. Perry should
have but one hour, but the court granted
him an additional half hour, in view of the
great Importance of the case. The hearing
concluded this morning was on the appeal
OF the four men from the decision of Judge
McComas, dismissing their demurrer to the
two indictments returned against them.
Should the court sustain the decision of
Judge McComas. District Attorney Birney
would move the trial of the defendants at
the very earliest practicable day, probably
not later than some day next month But
should the court decide against the indict-
ments, there would arise the necessity of a
new indictment, and steps would be at once
taken to secure 1t. Just when the court will
render its decision is, Of course, a matter
OF mere conjecture but 1t is believed that
decision may be expected not later than two
weeks time. The court room was we'll filled
by members Of the bar and other interested
persons this morning. and the courts de-
cision Will be awaited with considerable
interest.
MIR. Perry Argues.
Mr.. Perry said in his argument that ALI
he hoped to be able to do would be to make
clear the confusion which had arisen dur
ing the hearing below, and to some ex-
tent during the present hearing. 1t seemed
TO him that the defendants were either
charged with the actual digging away of
the earth beneath the fallen pier or with
having improperly employed others to do
IL. The district attorneys faulty indict-
ment had bee the result of a too hasty
drawing or 1t to meet public clamor. 1t
sought to make Col. Ainswortn respon sibIe
SIMPLY through his official position as the
mead OF the office but in no manner what
ever showed what connection IL any, Dant
covert and Sasse had with the repairing
OF the wrecked building. The man killed
Loftus. the indictment also utterly failed
10 describe, and for all one could learn
through the indictment he might have been
d foreigner merely visiting the building
instead or charging the digging away of
the earth from beneath the pier an act
OF commission, the indictment alleged an
omission of duty. But the instrument was
inconsistent for it subsequently, charged
that the defendants improperly dug away
the earth. That is, the Indictment first
charged omission and then commission
tnereby leaving the defendants at an utter
loss TO Know which of the two things they
must answer But after all the nlea dor
discovered that he could not charge a felon-
tous dlsSing away of the earth by the de-
Ienoants. and he was, therefore, forced to
The omission of duty, said Mr. Perry was
negative thing, and was an individual
matter. Where more than one person omit
TED to perform a duty. the thing became a
conspiracy, and therefore an act of COM
mission. That the indictment did not
charge, and because of that failure II be-
came fatally defective. Hence the indict-
ment could only be treated as one charging
an act OF omission, a failure to perform a
duty. But the fault of the indictment was
that 1t failed to charge a fact, making the
aVerment one of mere law a conclusion of
law. 1t alleged, in a general way, duty,
but entirely failed to set out that duty
The excavation itself had been treated as
an innocent thing, and yet something in
connection with that harmless thing had
sought to be made criminal matter. 1t
was true that the indictment charged that
the earth was improperly removed from be-
meath the pier, but the pleader neglected to
charge that the defendants felonious,y and
improperly removed the earth. and while
the term feloniously had been employed
twice in the indictment, 1t had not been
used in connection with the alleged duty OF
the defendants.
Acts of Omission.
The government had urged, stated Mr.
Perry that the indictment read together
plainly acquainted the defendants with the
charge against them, but such a contention,
asserted Mr. Perry, could not be maintained
in the District or elsewhere. man was
undoubtedly responsible for his own acts.
whether of omission or commission, but in
the present case it was sought to make four
equally responsible fo- one act, when any
one OF them could have prevented the ac-
cIdent had it been true that all four OF
them were responsible Tor its prevention.
The case sought TO be made out by the
indictment was the extraordinary ana lie
sal one OIL making the omission OF duty that
OF AInswortn piuS tnat OIL Dant, Plus that
of Covert, plus tnat or Sasse. Such con-
tenIIon, asserted Mr. Perry, could never be
sustained, and ne detied anyone to show a
single authority for extraordinary a
proposition. To so hold would De to extend
the criminal law to an extent authorized
neither by principle nor by precedent. In
criminal law there was, said MIR. Perry, no
such thing as contributory negligence. A
criminal omission could only be predicated
upon an exclusive duty, and that assertion,
stated Mr.. Perry, was authorized by the
very latest authorities, despite the contrary
assertion of the district attorney. Where
one of several charged with a common duty
was indicted for the death of another the
indictment could not be sustained If it ap-
peared that the indicted person had right
to suppose that one of the others would
perform the duty. The authorities quoted
to sustain this contention were unanswer-
able said Mr.. Perry, and by the judge be-
low tMcComas) and by the district attor-
ney those authorities had been passed over
In conclusion, Mr.. Perry said that he was
confident that the Indictment would be
found by the court to be absolutely faulty
and thanked the court for the extension of
his time.
Chief Justice Alvey replied that the ex-
tension had been granted that there should
be the very fullest consideration of the mat
ter. for it was a matter in which not only
the defendants themselves were vitality in
terested. but also the whole people.