Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-10-04
FOR PROSECUTION
District Attorney Birney Claims That
the Indictments Hold Good
IN TIE Case OF COL. AINSWORHH ET AL.
His Reply to the Argument Of De.
PENDANTS Counsel
ON THE DEMURRER FILED

At the conclusion Of Mr.. H. E. Davis ar
gument yesterday afternoon In support of
the demurrer filed against the two indict-
ments in the case Of Messrs. Ainsworth,
Dant, Covert and Sasse, as reported in
yesterdays Star. District Attorney Birney
began his argument ON behalf of the in
dictments.
Referring to the extended argument made
by Mr.. Davis. the district attorney stated
that Notwithstanding the ability of Mr..
Davis. he had signally failed to show that
the objections to the indictments set out in
the demurrer were sustained by either es-
tablished law or precedent. On the con-
trary. argued Mr.. Birney, the numerous au-
thorities quoted by the defendants coun-
sci had In reality sustained the contention
OF the government, that the allegations in
the Indictments were both sufficiently and
fairly made.
No MisjOinder of Defendants
Referring to the contention Of the de-
fendants that they had been misjoined, the
district attorney quoted numerous authori-
ties. which he claimed justified the joint
Indictment of two or more persons con-
cerned In or contributing to criminal acts.
Replying to the suggestion Of Mr.. r. Ross
ferry that the case in bar referred only to
an alleged act Of omission, Mr. Birney de-
ciared that the distinction attempted to be
SHOWN py the defendants between acts of
commission and those of omission was not
known to or recognized by law For the
omission to do what was legally required to
De Done was nothing less than the negli-
gent doing of a wrongful or unlawful thing
And fine as hairs had sought to be split by
.he de1endants' counsel they would have to
De split still finer to show otherwise
II was not, said Mr.. Birney unlawful to
dig earth from beneath a pier unless in
80 doing precaution were omitted to make
the digging safe. The indictments mi
nutely described the construction of the
ouliaing and clearly showed in what man
ner the omission to take certain necessary
precautions had wrecked the building and
caused death. That omission was, assert
e1 Mr. Birney. one contributed to by
all or the four defendants, and every one
SO contributing was guilty of negligent
omission. The equal omission Of others
was no defense. stated Mr.. Birney, quoting
an Iowa case to sustain him. In his QUO
tation OF authorities, said the district at
torney, he would state them fairly, with no
attempt to mislead any one
A Sharp Interruption.
IT." quickly remarked Mr. Perry, "you
mean to intimate that We have done other
wise. you state what is false"
Have 1. your honor" inquired Mr.
Birney. said anything to cause such
| remark as that?"
Now. gentlemen" interposed Judge Nc
nature to arise. Let US proceed quietly
and properly"
Continuing. Mr. Birney explained that
| the indictments only intended to allege
personal breach of duty at the time Of the
accident. That he claimed, had been prop
erly and sufficiently done. The object of
the law In such cases as the one in bar.
said Mr. Birney, was rather to deter others
| from SO offending than to punish the
offenders and 1t was high time that such
negligent wrong doing be put a stop to.
'far too many cases of I didn't mean to-
and I didn't know 1t was loaded"
All Equally Negligent.
The contention Of the defendants that
only one Of them could be exclusively charg-
ed was, said Mr.. Birney. not sustained by
the authorities. II such a contention were
true then all Of the defendants would es-
| cape. And then the district attorney quoted
| several American and English authorities
| in support Of his contention that acts Of
omission by several authorized the joint
Indictment Of the several persons guilty
| Of the negligent omission. In the Budden-
sleek case and Texas case cited by Mr.
Davis four persons were jointly indicted.
said Mr.. Birney, and with one exception
| ian English case) he had yet to find that
| several persons guilty Of negligent omis-
sion could not be jointly indicted.
Mr.. Birney had not concluded his argu-
| ment when, at o'clock, the court adjourn
| ed until this morning, and at IL O'Clock
| this morning he resumed his argument
none of the defendants being present and
| very few spectators being in attendance.
The Point of Definite Duty.
In resuming his argument this morning
Mr.. Birney proceeded to discuss the Sec
ond objection Of the defendants to the in
| dictments, that the indictments failed to
charge a definite duty in the premises upon
them, gave them no legal notice Of the
| fc,,1ar Of nf n q
charged against them. Their duty, claimed
Mr. Birney, was clearly defined in the al
legations setting out the character OF the
building and that of the work found neces-
\ sary in putting In the electric light plant.
| The allegation that 1T became and was the
| duty of the defendants sufficiently al
legged their duty, and in support Of his
contention Mr.. Brney quoted an English
| authority Rex agt. Haines. c. and K.
1867 which, he said, used almost the same
| Identical terms In that case. explained
ant was not alleged beyond the allegation
| that 1t became and was his duty to do
certain things which, neglecting to be done.
caused death. And similar course,
said Mr.. Birney, in the Indictment in New
| York years ago of the owner and officers
Of a steamboat which, engaged in racing on
| the Hudson river. blew up and caused the
| death Of a number Of passengers. In the
| present case the indictments alleged that
| the defendants. knowingly engaged in con-
| nection with work dangerous and re-
| Qutring great care tailed to exercise the
| care required of them. Hence, the law
presumed and imposed criminal intent
| in the neglect to observe such care and
| supervision.
Alleged More Than Acts of Omission.
Replying to an inquiry Of Judge Nc
| Comas, Mr.. Birney stated that the indict-
ments did more than to allege acts Of omis-
| sion, for 1t was alleged that the defendants
did improperly remove and cause to be re-
moved the earth supporting the pier.
| Judge McComas stated that without in
| the least indicating the mind Of the court
| in the matter, he would ask counsel on
both sides to some time hereafter more
particularly address themselves to the point
| urged by the government that the defend
ants did improperly remove the earth from
beneath the pier without having first Sc
cured the safety Of the building by snoring
or some other feasible device.
Continuing, Mr.. Birney said that the sub
| ordinate charge in the present indictments
was the allegation that the defendants in
improperly removing the earth from be-
meath the pier did without having first
secured the safety of the building by snoring
or soma other feasible device. the main
charge being that they removed the earth
and he then quoted authorities which he
contended supported the participial form OF
the indictments in the subordinate charge
Mr.. Perry Answered.
Mr.. Perry suggesting that the indictments
failed to allege that the defendants willfully