The times. [volume] (Richmond, Va.) 1890-1903, 1893-08-20
THE CASES DISMISSED.
.rDaE HUeHEs' ABLE OPINION As
cEKrxTN ELECTION ARKEsTs.
-. should he Known to he Oficers
p.fors Their Asssiiants Can he Prose-
.u,,d Under Certain Statutory Law.


..,.o Robert W. Hughes. OF the United
80 circuit Court, has. as was related
az. paper Friday. dismissed the cleo
=. .sses that have been pending before
-, ocurt for some time. The style OF the
90 United states against Robert Fay
-. ais. on an indictment for obstruct-
oecers OF the United States at con-
...,o,al election held at Richmond on
s.ovenber s. 1892.
3D.. vory comprehensive and able opin-
%, Judge Hughes IN full is as follows;
.e,s is one OF several indictments found
-,.s, Robert Taylor and sundry other
as The indictments charge the de-
s.cts named In them with unlaw-
-. Interfering with the election for
l'.'.---essnnan OF the United states which
reid on the sth day OF November
,go NJ the second precinct OF jackson
Nd IN the city OF Richmond II sets
W.. tsat clinton DePriest was United
e.,tes supervisor OF that election at that
,,.-,nct and that DePriest calico 10 DIS
mort three United states deputy mar
.,sie 10 prevent himself from arrest ana
f..t.o from the polls-viz.. George NJ
D.. y
=. cborces that the accused hindered, IN
-e.~o6 with and DISTRACTED. assaulted
- rrevented the said DePriest' super
90 ana Travers. Rowe and OBrien'
80. ,,orehals. in the lawful discharge
,,tsr duties under the laws OF the
,.-,..d Stotes AT said election at SAID pre-
N.Y.. ona prevented their free attend
,-oe and presence AT the polls OF eiec-
o. ord their fun and free access 10 aho
..s cen, 4he polls. and violently eject
a ,hor from the said polls or electioh'
or5 causea them 90 be removed iron, ,no
Ia nolls. and 20 be carried 70 anu III.
..rcerated IN the city Jail or tne ~ ~
,toNr,o,d without any legal authority OF
i-loI'.,o' .,ro.ovo~ other than n pretended
pr 49,. 80 orresf issued by said ROBERT
mNr,s.'' ono ~ the defendants. contrary
i"S,DI' -, ~ the United states and
10 ." me peace and dignity OF the
United States.
A Faulty Indictment.
,-,. r1oco Of the holding OF the Om'eo
e.a,es circuit Court for the Eastern dis-
,r,ct OF virginia by the grand Jury ol
-,hiob the indictments were found ~ not
civon. The term or time at ~nich the
curt was held IS not stated. and cannot
So gathered from the indictments Inc
concluding charge OF the Indictment en-
traced I'm the phrase contrary 10 the "a"
- the United States and against the
.. o,a dicuitv Of the United States,
,.fors textually and grammatically only
e, t,,a warrant of arrest which II charges
o., hove been issued by said Robert ray
lar very forced construction OK the
LANGUAGE Of the conclusion Of the indict-
mont As necessary 10 apply this essentlal
charge 10 the allegations OF violence AT
+ho polls which is the real gravamen OF
The indictments.
DO fs useless in the cases at bar 10 con-
slider the effect OF these irregularities upon
che validity Of the indictments. There Is
n further omission In these instruments
which IS OF graver moment. II is horn
hook law that in indictments for large
class az offences a scienter must be
charged. In an Indictment for uttering
forged paper. for instance, Il IS not sum
Gent 10 charge that the paper was forged
and that q was uttered by the accused
but # must be distinctly and I'm express
words charged that the accused well knew
the paner was q forgery when he passed
a. upon another person. This knowledge
this scienter. cannot be supplied by III
ference OF implication from other allega-
tlens OF the indictment
So IN regard to assaults upon officers OF
DE- law while engaged in the discharge Of
duties imposed by law. An assault by
one person upon another may be crimi-
rally prosecuted with success under an
Indictment that does not charge scien-
Ger. for here the common law offense OF
assault IS complete, whatever may be the
character OF the person assailed. But II,
ty statute law, the offense OF assaulting
an officer Of government in the discharge
OF a duty imposed by law for the pur-
pose OF obstructlng him in that duty be
made an Offense. then something more is
necessary than 10 charge that John
Smith assaulted James Brown. The in
d.ctment must charge not only the as
sault. but the offense Of obstructing an
officer OF government engaged in perform
ing a duty imposed by law. and all ruch
Indictments must charge the scienter. For
one person 10 assault another who may
happen 20 be an officer exercising some
C4Icial function at the time would DO
simply an onense at common law, unless
che assailant knew that the assailed was
on officer and committed the assault upon
him because he was an officer. In such
case the scienter is an essential ingredi-
ent u the offense. and must be expressly
and particularly charged.
fortiori. is this so in cases of Of
lenses against the United States. like
those charged in the indictments at the
BAR The Offense consisted in obstructing
officers Of the United States as such,
and assaulung and imprisoning them
while discharging their duties under laws
OF the United States at the polls. in the
election OF a member Of Congress OF
the United States. The indictments
could not have been found in this court.
unless the Offenses charged had been
committed against the officers OF the
United States acting as such in the line
of duty imposed by the laws OF :he
United States. To assault an officer
Of the United States while happening to
be engaged in performing some duty
enJoined upon him by Federal statute
IS only a common law offense; end Il
becomes a statutory offense only when
the assailant knows that the assailed is
an officer OF the United States, and
makes the assault for the purpose Of OBJ
structing the officer IN the discharge Of
duty imposed by laws OF the United
States In such cases the scienter is an
essential ingredient OF the offense. A.
faid by Judge Story in the United States
agsinst Keen. Masons. 453: In cases
~ that sort, II is the official character
that creates the offense. and the scienter
is necessary" To this may be added
what the present Chief Justice said in
Pettlbone against the United States,
rs u. s., 2J2: IF any essential element
o. the crime is omitted Gin the indict-
meno. such omission cannot be supplied
by amendment or implication. The charge
nrst be made directly. and not infer
10 q NNnH ~ - "a