The Redwood gazette. [volume] (Redwood Falls, Minn.) 1873-1940, 1894-05-17
APPELLANTS BRIEF.
FULL TEXT of the Madigan Brief
to the Supreme Court.

The appeal in the ease of the State
Tvs. M. NJ. Madigan will he argued in
the Supreme Court May 25th. The
paper book, containing allthe evidence
and proceedings, is an immense docu-
ment of 1876 pages, or LOCI folios.
The brief for the defense has been
prepared and served ON Attorney
General Childs, who is now engaged
on his brief. The points ia the brief
of the appellant are given below, land
AS soon as the brief for the State ap-
pears, the points, or all of it will be
given space in these columns:
It is alleged and claimed by the defendant
that this indictment does notstate facts suf-
acient to constitute public offence.
l. It does not anywhere allege that the
defendant was an Attorney at Law. This
was an .afidavit for writ of attachment in
District Court. The statute provides who
may make an AFFIDAVIT for a writ, viz: The
plaintiff his agent or attorney. This statute
who are authorized to make the affidavit
In this case the attorney makes it as the
afidavits recites, but if the word attorney
in that statute means anything it means that
an attorney at law who is the attorney for
the plaintiff may make it. In other words
the plaintiff is authorized to swear to it, his
agent is authorized to swear, and his attor-
ney. is authorized to swear. no other person
is authorized to make the afidavit, and an
afidavit made by any other person would be
an extra judicial oath and would not be per-
jury. If this is true then the indictment
must show that the defendant was a person
authorized to legally make such an afddavit.
The indictment must show that he wass a
person authorized to swear on this particu-
lar OCCASION and in this particular proceed
ing. An oath taken by one not authorized to
take is an extra judicial oath and perjury
cannot be assigned upon it. The fact that
the statute only authorizes the plaintiff, his
agent or attorney to make the 441davit is
equivilant to prohibition, being prohibi-
ton in effect it was necessary to aver in the
Indictment that the defendant was an attor-
ney, so that it would appear, he was per-
son authorized to make the afidavit, had it
was extra judicial, the oath extra judicial
and perjury could not be predicated thereon.
II. But if our position heretofore should
be held by. the court to be untenable, then it
was not necessary to allege in the af1davit
for attachment, that he was attorney for the
plaintiff, and would be immaterial and per-
jury would not be predicated upon it. The
statute provides that the afidavit may be
made by the ''p1afniff, his agent or attorney"
but does not require that fact to be alleged
in the afhdavit. It is the fact, not the state
ment that gives validity to the affdavit But
this was the averment upon which the court
charged the jury, and to which the defend
ant excepted. It was that one upon which
the defendant was convicted, as being false
and material. The statute provides what
shall be put into the afidavit. the facts it con-
tain, but it does not require it to state that
it is made by the plaintiff his agent or at
torney. If this is in fact made by one or the
other then the law has been complied with.
That allegation was immaterial and the
court erred in charging the jury it was ma
terial.
Ill. The indictment is bad because there
is no allegation of the materiality of the
facts upon which perjury is assigned. It is
true the indictment AYERS that "said affidavit
was material. This is not sufficient allega-
ton of materially. The court below charg-
ed the jury that that there were only two
material allegations in the afidavit.
w. There is no evidence unless the affi-
davit is itself evidence of the fact, that the
defendant was sworn to the afidavit on
which perjury is assigned There is no evil
dence that the defendant was actually sworn
except the jurat of the notary. The notary
was on the witness stand and was not asked
the question. The defendant tistiied that he
presented the affidavit to him and the notary
signed it without any other act. The oath
was not in fact administered. To constitute
perjury the oath should have been admitted
and the proof should have been clear that
| the defendant was sworn.
| V. The court erred in allowing proof of
the signature of Romnes to exhibit "B." Ex-
hibit 'B' was the bond for attachment
issued in the action. While Peter Romnes,
the person who was the alleged complainant
was on the stand, as witness, the council
for the state, with the sole view of prejudic-
ing the case. and the jury. against the de-
| PENDANT, and to prepare the way for the in
| PRODUCTION of the bond in evidence, proved
by him (Romnes) that his name upon the
bond was forgery. Before the bond was
received in evidence, the court against OBJ
lection allowed the state to prove the bond a
forgery by the defendant. This was error
and prejudicial to the rights of the defend
ant. With this proof before the jury the
court admitted the bond in evidence. This
was such error as we submit should set aside
the verdict. There could have been but one
purpose and one design in getting this before
the jury,viz: To prejuice the jury and to
permit the council for the state to argue to
the jury, that the defendant should be con-
victed of perjury because he had been guilty
of forgery, which he did very successfully
With all due regard for the court below, for
whom we entertain great respect, we can
only characterize it as outrageous, not sim
ply erroneous. The evidence was of course
immaterial to the issue in this case, and it is
an almost universal rule, that immaterial
and incompetent evidence that might have
been prejudicial to the rights of the defend
ant, even in civil action, is ground for a