Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-11-10
To Overthrow the Ford's Theater
Disaster Indictments.
ARGUMENTS BEFORE COURT OF APPEALS
Mr.. Davis Leads Off and Mr..
Birney Answers Him.
QUE ESTIONS AT ISIS UE.


ter Of June last, from Judge McComas'
decision dismissing the defendants demur-
rer to the indictments was commenced be-
fore the Court of Appeals. Chief Justice
Alvey and Justices Morris and Shepard.
District Attorney Birney represented the
government. Messrs. r. Ross Perry and H
E Davis appearing on behalf of the de-
fendants.
Mr.. Davis opened by explaining at length
the previous proceedings in the case, stating
that he would first discuss the third ground
OF the overruled demurrer, viz, that the in
dictment charged upon the defendants an
illegal measure Of care and diligence. The
Indictment. asserted Mr.. Davis. could only
be treated as an indictment at common
law for manslaughter. by reason of death
occurring from the omission of a common
law duty through common law negligence.
Judge McComas had apparently thought
little OF the objection, for he stated that he
would tell the jury that the defendants
could not be held responsible for an illegal
measure Of care.
Chief Justice Alvey-"rHow are the de-
fendants then prejudiced?'
Nj. Davis-"Because We contend that the
Indictment fails to charge an offense in
that II alleges no duty on the part of the
defendants II / were indicted for playing
marbles. the indictment would be quashed
because playing marbles is not an offense.
And the same can be said of the present
Indictment, the defendants are charged
with that which is no offense
Technical Objections.
IL would undoubtedly be said by the gov
ment. continued Mr.. Davis, that the OBJ
Jections to the Indictment were merely
technical ones, but for a thousand wears
mans life and liberty had been protected
oy technical objections. Blackstone had
proudly said that in England a mans neck
might come with an inch of the halter and
yet be saved by technicalities and today
an Englishman was perfectly secure against
public clamor through the right of techni-
Cal objections Unfortunately, such was not
always SO in this country, and in the case
or Jacob Sharpe two judges in New York
VINO had the courage to that he was
not deprived of the rights guaranteed him
by law were almost bounded out of ex-
issence by the clamor of the public because
they dared to do so; yet the court of ap-
peals OF the state had sustained the two
judges
Proceeding to discussion of the three
remaining objections to the Indictment, Mr..
Davis contende6 that the allegation that
the defendants undertook the work. of
making the repairs to the building In no
way alleged any duty upon them, and the
indictment entirely omitted to even state
who the defendants, excepting Ainsworth
were. At best the indictment was an al
multiple 1t sought to charge that the de-
PENDANTS failed TO shore or use some other
feasible device for the protection of the
building: hence, in that respect, at least,
II was, asserted Mr.. Davis. the very worst
Indictment he had ever known.
Where, said Mr.. Davis. two or more per-
sons were charged with the performance of
an act, TO the performance whereof one of
them was adequate, each of them was only
liable for the consequences of his own
omission to perform that act. If such
rule was not so. then il must follow that
one or more were liable for the conse-
quences of omission of the others. But
such proposition, urged Mr.. Davis, was
untepable. for no man is liable for the
omission or commission of another unless
he is In some way the cause of that omis-
sion or commission.
The Indictment utterly failed, therefore,
to allege any legal act of omission or
commission by the defendants or any one
Of them The only defendant, stated MIR.
Davis, who was described in the indict
ment was Col AinSworth, but 1t was
where set out that he had any duty in the
matter which he omitted to perform.
why, your honors. exclaimed Mr. Davis,
the indictment might have with equal
1mproprtety, charged that the Secretary of
war, who Is Col Ainsworth's superior Of
hcer, or the President, who is the Secre-
tarys superior officer, is responsible for
the death charged against the four de-
Mr.. Davis spoke for two hours, and con-
GUIDED by stating that he was confident
that the court would reverse the decision
Of Judge McComas.
Mr.. Birney Follows.
He was followed by District Attorney
Birney. who stated that the case was sin
gular in this, that it was in law almost un-
precedented- The number of cases similar
10 II could be counted upon ones fingers
Ihe case most similar to It was the Bud
densieck case in New York, and the indict-
ment In the present case in many respects
followed the Buddensieck case Ii the con-
tentions Of the defendants were sustained
then the result would be that where more
than one person was charged with the
death of another. because of Joint omis-
sion OF DUTY then no one could be punish
ed he did not believe that the courts de-
ctsion, which would undoubtedly become
the leadng authority among the English
speaking people at least, would sustain
such contention. IL was not true as as
serted by the defendants counsel that the
authorities demanded that an exclusive
DUTY upon the part of the defendants must
be shown to sustain the indictment. The
latest authorities authoritized the true
specific duty.
Contribution Only.
The conclusion, said Mr.. Birney. that the
breach OF duty need not be upon one ex-
clusiyely is sustained by the settled doc
trine that ii is enough IL the conduct of the
prisoner contributed to the death, and if
while persons are doing what is criminal
another joins them before the crime is
SO"Plcteu, ne becomes Sullty OF the whole,
because he contributed to the result. Negli-
gence. in the present case, could not be
distributed, but all who were guilty of the
negligence were equally guilty of the
CRIME II was no defense, asserted Mr.. Bir-
ney, that the death OF the deceased was
etllaliy caused by the negligence of others.
Inc Indictment, in the case of United
states Agent Collier ct al, where seven
persons were Jointly indicted for causing
death by their criminal negligence was
similar 70 the one In the present case, ex-
planned Mr. Birney. and in that case the in
0lctment was sustained.
Case Cited.
In support Of his position. Mr. Birney
read many authorities, the latest of which,
he explained. was the English one of Re
gina ast Salmon et AL decided in 1880
In that case three men placed target in
tree, and while firing at it. one of the
shots struck and killed a boy several hun
dred Yards beyond Which man fired the
fataI shot was not determined, but all three
We're convicted. and the conviction sustain
Ell py the appellate court it being held that
oealh resulted from the action of the three
men. and that all fiab haOa,,c.. -.