St. Paul daily globe., 1893-02-07
He MUST FACE IT.
Burns Must Trust His Case
to the Test Of a
Jury.
The Court Knocks Out His
Novel Plea to
QuaSh.
No Evidence That the Docu-
mentS We're Not Before
the Jury.
So the Case Will Go to Trial
Finally on It's Mer-
it's.

ments against James Ii. Burns charg-
ing him with overcharges as county
printer. In deciding the question Judge
| Kelly reviewed the authorities at con-
siderable length. The following are
some of the points in the decision Of the
court:
| Each of these three indictments has
| indorSed upon it only the name of David
Ramaley as witness before the grand
| jury. The defendant made no further
move thereafter, except, as l am ad-
vised, he applied to my associate, Judge
Kerr, and obtained commission or
order to take the dispositions of certain
witnesses, which order or commission
is now in full force. Lam not advised
/ as to which one of these indictments
this application was made in, but pre-
sumo the evidence was intended to be
used III any one of the indictments.
The TIyO Grounds.
On Feb. the defendant appeared in
court, by his counsel, and gave notice
that he would. if permitted by the court.
make this application, and the same was
set for hearing on the 81 of February,
1898. On Feb. the defendant appeared
in person, and by Henry Johns, Esq,
his attorney. and moved the court as
follows: First, that he be permitted to
withdraw his plea of not guilty. hereto
fore entered herein, and that the court
may entertain motion OH the part Of
the defendant to QuaSh SAID Indictment.
Second, the defendant moves the court
to quaSh the indictment for this: That
said indictment was found by the grand
jury without hearing any testimony
touching the guilt or innocence OF the
accused, as will more fully appear by
testimony produced to the court.
The first motion, which IN my opinion,
after plea is entered is the proper prac
tice, is one addressed to the sound dis
cretion of the court, but | may say, with
probably one exception, that is the rule
in all the states. and in view of the pro-
visions Of our statute, will he clearly the
rule of this state.
Is this such case that the courts
discretion should be exercised and per-
mission to withdraw the plea be
granted?
On Jan. - the defendant had copy
of the Indictment upon which the name
of the witness before the grand jury
was indOrsed. He did not, up to and in
Guiding the 10th, move, as he might as
matter of right; on the contrary, he has
taken steps to have a commission issue
from this court to take testimony in the
case. .Conceding,f for the argument, that he
has not waived his right forever, under
our statute, to make this motion, ought
it 10 be entertained upon the showing
made? Mr.. Johns affidavit is to the
effect that MI Ramaley was the only
witness who gave testimony, and that
his testimony was merely that of an eX
pert, and that there was no other legal
evidence before the grand jury upon
which the Indictment could have been
found. But. if the grand jury had be-
fore them documentary evidence tend
ing to sustain the charge. that, together
with Mr.. Ramaley's evidence, might be
sufficient.
In view Of the general rule which [
have before cited, and noticing in this
case that the papers set out in hec YER
bea III the Indictment not only purporJ
TO be signed by the defendant, but also
purpOrt to have been sworn to by him
before notary public, whose seal at
tests the act. L am of the opinion that
the production before the grand jury of
the original papers, such as contracts,
bills sworn to-, proceedings of the county
@OiiiiiiicSlOiiSlO d vi dulS CODICo
thereof, together with the evidence of
the expert, if the fraudulent character
of the charges could have been shown,
would have been sufficient to make out
prima facie case before the grand
jury. The defendant does not pretend
that these things were not done.
His Sole Contention
is that Mr.. Ramaley was the only wit
Dpcc curOVD aud cavc thot ba
nature of things Mr.. Ramaley could not
know personally of ali these matters.
l am not sure of that, because every
citizen is entitled to free access to the
public records, and Mr.. Ramaley might
have had personal knowledge Of all
these facts. But | do not rest my de-
cSion OH that. | assume that the wit
ness Ramaiey testified merely as to the
value, under this contract, Of the work
done, so that the grand jury could say
whether Or not the bills as rendered
were just and true. If, therefore, |
should permit Mr.. Ramaley to be sworn
in this case and he should testify to the
effect as contained in Mr.. Johns affi-
davit-that he only testified before the
grand Jury as an eXpert-by whom and
by what process could the court ascer-
tain whether or not the grand jury had
dence to which | have referred?
Now. counsel for the defendant has
made very able argument, and cited
some cases, two Of which bear pretty
strongly towards sustaining the posi-
ton which he has taken here. | have
examined all the authorities that have
been cited to me most carefully, and |
find that in the two cases which seem to
be nearest in point, in each of which,
on motion, an Indictment was ouashed,
the facts indicate that the indictments
were frauds on the court, more from
the interference of unauthorized persons
with the deliberations of the grand Jury
than from the lack of competent evil
dence in the case. Now, there is moth
ing of that kind in this case; not Sug-
gestiOn that the grand jury has been
Influenced by any other than /, proper
and conscientious discharge of its duty.
1t is my opinion that the defendant has.
make this motion, and that, in any
event. he has not presented a case
which is entirely free from doubt.
The Motion Denied.
For the reasons above stated, feel
that it is my duty to. deny the motion of
the defendant for leave to withdraw his
plea and introduce evidence, as he sug-
gests. Defendant may have au eXcep-
tion to my ruling.
Mr.. Johns-If the court please, do
understand the court to base his decs-
ion entirely upon the exercise of discre-
tion?
The Court base it on both.
Mr.. Johnson course, if it is on the
ground of refusal to exercise discretion.
our exception would be practically of
no effect; but if it is on the other point
The Court hold. first, that you can
not present the motion at all, under the
practice, until the court has exercised
his discretion. [ have refused TO eXer-
else my discretion. l shall deny that
first. of course. have intlmated in my
opinion that from the facts in the case
it is not case where the court would
be justified in exercising his discretion.
do not put it upon the ground of
laches. but put it uponthe ground that
there is not showing made which
would justify
MIR. Johns-Well, understand the
court. Then to the ruling of the court