Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-10-03
AINSWORTH'S PLEA.
His Counsel Still Arguing the De-
murrer to the Indictments,
THE POINT As TO COMMON DUTY.
Analogous Cases Alluded to and
Some Authorities Cited.
THE BUDDENSIECK CASE.

At Ills this morning Mr.. II. Z. Davis of
counsel for Messrs Ainsworth, Dan.. CO.
vert and Sasse, twice indicted for man
slaughter In connection with the Fords
Theater disaster OF the 9th OF Tune last, re-
sumed his argument on the demurrer filed
by the defendants against the indictments
before Judge McComas, In Criminal Court,
No. /.
After briefly reciting the grounds urged
by him last week in support Of the demurrer,
Mr.. Davis oontrasted the Indictment in the
Buddensieck case and the ones in the case
at bar, asserting that ir the former case
the defendant was charged with an act
OF commission, while the defendants in the
present case were simply charged with acts
OF omission. Mr.. Davis also asserted that
the court Of appeals OF New York in hear
ing the Buddensieck case did not pass upon
questions which might have been raised on
trial by demurrer, as to measure of care.
&c. But during the trial, said Mr.. Davis,
the jury were told by TIE court that the de-
fendant was required TO observe ordinary
care only in conducting his work, while In
the present indictments the defendants
were sought to be responsible because they
failed to exercise unusual and extraoidi-
nary care, an extreme and Illegal measure
of care.
Mr.. Davis then proceeded to discuss the
fourth point of the demurrer. viz: That the
indictment charged criminal responsibility
upon several for the omission of an alleged
joint or common duty not exclusively the
duty Of any one of the defendants and yet
not a joint or common duty in the sense
that each OF said defendants was charged
exclusively with the performance of con-
temporaneous or successive parts Of a joint
or common process
Where more than one man is charged
with the consequences of the omission of
the same duty, the Indictment must fail,
argued Mr.. Davis, and unless a joint duty
has become by circumstances exclusive no
criminal neglect can be predicated of its
omission. So. unless each of the defend
ants took upon himself the exclusive duty
OF performing the work in the present case,
and each omitted to safely perform it, they
could not be held responsible. IL the duty
be not exclusively assumed no criminality
will attach to the injurious omission. Hence,
In the present case, stated Mr.. Davis, the
negligent omission sought to be charged
against the defendants could not have been
the omission Of each and every one of them
until after each and every one of them
became conscious of the alleged criminal
omission and failed to remedy the evil.
Analogous Cases Cited.
In examining the authorities. Mr.. Davis
said he had failed to find a single case
where an indictment similar to those under
discussion had been sustained. The case
more directly analogous to the present one
was that of Rex agt. Lloyd q c. & p. SOD.
decided in 1924. In that the Indictment
charged that the prisoner, who was one of
three men working a windlass in which
the strength of all three was necessary.
forced the other two men to leave the
windlass, killing man on whom the
bucket fell. Although the prisoner was ac-
quilted, because he was charged with force.
the indictment was instructive, because TO
make an omission by one common or
Joint duty criminal collective duty was
required to be alleged.
In answer to an inquiry by Judge Nc
Comas, Mr.. Davis replied that IL the
bucket had fallen because of the omission
Of proper care on the part OF each man
working the windlass, then the three men
would, properly, have been separately in
dicted. And that course he asserted.
should have been pursued In the case at
bar.
Each Answerable for His Own Acts.
In a criminal case continued Mr. Davis,
every man is answerable for his own acts,
and there must be some personal act or
omission to constitute responsibility. So,
| in order to a conviction for manslaughter
1t would have to be alleged in the indict-
ments that the negligent act which caused
death was the act or omission OF each,
said Mr.. Davis.
Mr. Davis then discussed the case of
Queen agt Pocock ct al. Q7 Q. b., $40, de-
| cided 1851, where the defendants were
charged with manslaughter because Of
| their neglect to keep in repair certain
road. There were on the bench in the hear
| ing OF that case, said Mr.. Davis, four very
| learned judges and they quashed the in
| QUESTION, holding that the neglect to con-
| tract for the repair of the road to make
the defendants guilty of IT or liable. must
have been personal omission and that
| death must have been shown to have been
| the immediate result Of that personal neg
lect.
What the Government Has Failed to
| Do.
In the case at bar, stated Mr.. Davis, the
government had absolutely failed to connect
personally any one of the defendants with
the. fall of the building. 1t would not do,
he said. to hurl at their heads a vertically
unlimited vocabulary of words. and in that
way hope to drag them in. But, on the
| contrary" exclaimed Mr.. Davis, 1.-The gov
eminent must, If IL can, point out the one
man guilty of the alleged neglect. and
| charge him with the crime. So. IL any one
of the defendants could have prevented the
disaster, then there was no exclusive duty
| on the part of the four defendants, and
| there is the very highest authority for say
| ing that in such an event there can be no
sions had occurred In the present case. which
the defendants had every reason to believe
would not have occurred"
Reply to the District Attorney.
Replying to a remark of District Attorney
| Birney that the duty of the defendants
| could be proven, Mr.. Davis said he thanked
his friend for that suggestion, for in the
remark the purpose of the government to
| allege substantially nothing against the de-
| PENDANTS, and then on the trial prove them
guilty. IL possible. of something unknown