Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-10-09
implication or inferentially. or by way of

notlce OF the particular neglect thereof
could have been made more directly, more
definitely. 1t could have been made in one
count or in several counts. Nevertheless
upon the face Of the indictment 1t appears
that the defendant, Ainsworth. had charge
and control Of Ford's old theater building
in the city and District. which building was
on June 9Th, 1885, occupied by a large num-
Der Of clerks distributed over the three
floors thereof, and at 10 a. m. on that day
portions of the second and third floor there
of gave way, the building being then occu-
pied by the clerks in the discharge Of their
duties. portion Of the first floor, extend
Ing from the rear wall Of the building to
line twenty and fifty-five hundreths feet from
the front wall. rested on brick arches sup
ported by the interior walls, each of which
walls extended from the rear wall to an
embankment OF earth and the said line,
twenty and fifty-f1ve hundreths feet from
the front wall. The arches and interior
walls formed cellars under the said part of
the first floor and the rest of the floor, the
front portion. rested on an embankment of
earth.
In order to the introduction into the build
ing Of an electric light plant 1t became nee
essary to deepen about four feet part or
the central cellar. to excavate and remove
quantities of earth from the embankment
Of earth and from under certain Of the in
terror walls and certain brick piers and to
underpin these walls and piers. all Of which
premises the defendants well knew.
That the defendants undertook and as
sumed and were concerned in the perform
ance of the work and works afore-
said, which became and were nee
to gsf into the the suDe
the works were being performed on June
9. 1893, and while being performed were I'M
der the entire care, charge. control man.
agement and supervision Of the defendants.
and the defendants so having undertaken,
assumed, and SO being concerned in the
performance, and so having the entire care,
charge. control. management and super
vision of the work and works aforesaid. 1t
was their duty to so regulate and conduct
the performance of the work and works
aforesaid:
Il. AS not to endanger the stability Of the
said second and third floors Of said build
ing and to do and to cause to be done.
=. Everything in their power
necessary to go make the perform
ance of the work and works aforesaid safe
- and free from danger to the lives Of
persons in the building, among whom was
a certain LOTUS.
I'm connection with all the circumstances
before alleged. herein is sufficiently alleged
their definite duty to so regulate the work
as not to enIanger the stability Of the said
floors. and their definite duty to do every
thing necessary to make the performance
Of the work safe and free from danger to
the lives Of persons in the building.
1.-THE indictment proceeds to charge that
the defendants being unmindful Of their
duty did willfully and feloniously neglect
and omit to SO regulate and conduct the
work Of excavating the earth from under
the pier at the west end of an interior wall
as not to endanger the stability Of said
floors and did willfully and feloniously ne
glect and omit to do everything
necessary to make the performance
Of the work free from danger but
did improperly remove and permit
to be removed from under the pier
the earth supporting the same. without
having first relieved the pier . from
the great pressure upon 1t.
II opf 1oOo
notice of the particular negligence where
with the defendants are sought to be
charged. This view disposes Of the second
and only remaining point argued in sup
port Of the demurrer.
Two more objections, strenuously urged
believe to be technically only.
Il conclude that this indictment does fur
nish the accused with such a description of
the charge against them as will enable
them to make their defense and avail them
selves OF their conviction or acQuittal for
protection against a further prosecution
for the same cause. 1t also informs the
court Of the facts alleged that Ii may
decide whether they are sufficient in law
to support conviction IL one should be
had. Such is the test 1 therefore over
rule the demurrer"
Delay Granted.
At the conclusion Of Judge McComas, Mr.
Berry said that the defense thought that
the judgment of the Court Of Appeals
should be had upon this great question.
question involving not simply this indict-
ment. but any other Indictment upon that
theory Of the case. IT therefore announce"
he said. ito the court that Mr. Davis and
myself will ask the Court Of Appeals to
allow an introductory appeal in this case"
He also asked the court to grant a few
days Of time In which to make application
to the Court Of Appeals for the granting of
an appeal in this special case
Mr.. Brney: Under the statute the defend
ants have right to petition the Court Of
Appeals.
Mr.. Perry: Mr.. Birney, do you not think
1t advisable to have 1t done?
Mr.. Birney: Upon that 1 am not called
upon to express an opinion.
The court: The court understands that
counsel for the defendants will promptly
discharge their duty with respect to the ap-
plication to the Court of Appeals Pend
Ing that the plea had better be entered.
Mr.. Perry: If We do that, We would imme-
diately waive our demurrer
The court: The demurrer has been passed
upon. l do not mean to insist.
Mr.. Davis: Your honor enters an order
overriding the demurrer which means the
defendants to plead on or before a given
date, say next Monday, today week We
will ask permission, and the Court of Ap-
peals may not act upon 1t Immediately, but
may hold it under Amusement for a day or
two.
Mr.. Blrney: do not think that is an un-
reasonable length of time.
now absolutely, and then a subsequent or
der can be entered giving you leave to file
your plea within one week from this day
Mr.. Davis-1 would suggest that the order
be In substance tbis: Upon consideration of
the demurrer, and on, 1t is oyerruled
with leave to the defendants and each of
them to plead as they shall be advised. on
or before Monday, the 18th instant
The court-Appear and plead to the in
dictment on or before Monday. the 10th in
slant.
Nothing Improper CHARGED.
Mr.. Perry-I do not desire that II shall be
understood that my language of this morn
ing was used as intending to say that either
the district attorney or Mr.. Taggart did
anything improper in the discharge Of their
official duties before the grand jury. I did
mean to say. as 1 said here on Friday-I
think said 1t explicitly this morning-that
upon the face of this Indictment there is
no charge made that Lotus. the man killed,
was a government clerk, and there is no
charge that Ainsworth was associated with
these others officially or otherwise. 1 mean
ment that caused the Indictment to be
drawn in that way. 1 hope / have not
been understood as going beyond that
Mr.. Taggart-I heard that my friend, Mr..
Perry, had insinuated that there was an
Intentional effort to accomplish something
outside of the orderly. proper and regular
way. l was somewhat in doubt as to
whether he meant that. / could hardly be-
lieye ii DOSsible that he did For fhof 700