Evening star. [volume] (Washington, D.C.) 1854-1972, 1894-05-31

out in the indictment d.scloses that Dant
vas an independent contractor; that the
two clauses recite1 did not take from him
the control of the work and the workmen:
that therefore Ainsworth did not have the
right 10 control, did not have the power TO
compel and therefore not intrusted
with the duties charged in this indictment
Therefore it is contended the indictment
charges that AinswOrth omitted something
he had no power to do and suffered and
permitted something he had no power TO
prevent. 1 do not determine these ques-
tions. because the whole contract is not be-
fore me.
The Court of Appeals has directed that
this indictment shall set forth every fact
with full and entire accuracy" that this
requirement lis especially necessary where
the act or omission charged producing
the injury is not In itself necessarily un-
lawful. but only becomes 50 by it's peculiar
circumstances and it's relation to the re-
suit that follows in the natural sequence
of events. In such case every matter of
fact essential to show the illegality of the
act or neglect must be fully set forth and
the omission of any fact or circumstance
necessary TO constitute the offense will be
fatal Hence facts and not mere conclu
sions from facts or conclusions of law must
be stated. No essential element of the
crime can be omitted without destroying
the whole pleading. The omission cannot
be supplied by intendment or implication,
and the charge must be made directly and
not infsrentially or by way of recital"
(Ainsworth ct al VS.. L. s. Wash. Law
Rep. Vol. 81, p. S0S)
Allegations in the Indictment.
In alleging the duties devolvei upon
Ainsworth. I have shown that the indict-
ment violates these rules OF precision. i
next decide that in alleging the neglect of
duty by Ainsworth this indictment clearly
departs from these rules.
If this indictment be assumed to allege
that Ii was Ainsworths duty, by terms of
the contract. to direct the time and manner
of excavation in order that the work of
underpinning and building of walls be safe
ly and properly done. ii fails TO allege that
the work of underpinning and building of
walls was not safely and properly done. II
fails to allege that this work was done in
any manner. 1t fails TO allege that this
work was entirely omitted to be DONE
1t does allege that Ainsworth did omit to
relieve or require Dant and his workmen to
relieve the central brick pier at the west
end of the wall from the pressure upon il.
before permitting Dant and his workmen
to excavate preparatory to underpn-
ming. II does allege that Ainsworth
did suffer and permit Dant and his
pier and to attempt the building of a
wall under 1t without having first himself
Ainsworth. relieved, or caused Dant and his
workmen to relieve the peC from the press
ure upon it, by reason of which negligence
acts and omissions of Ainsworth this pier
did sink and break, and the iron columns.
floors gave way and fell. But the indict-
ment fails to allege the things done which
caused the brick pier to sink and break
II rails TO allege that concurrently with
Ainsworths suffering and permitting them
so TO CO, Dart and his workmen did ex-
cavate from under the pier and did attempt
the building of a wall without having first
relieved the pressure upon It,
1t falls to allege that concurrently with
Alnsworths omission to require Dant and
Els workmen to relieve the pier from the
pressure upon it before permitting them to
excaVate preparatory to underpinning that
Dant and his workmen did excavate from
under the pier and did not first relieve the
pier from the pressure upon 1t.
Case of rnference.
The Indictment. therefore asks the court
to infer that Dant and his workmen did
excavate from under the pier, also that
they did attempt the underpinning Of the
pier. also that they did not first relieve the
pier from the pressure upon 1t, and that
as consequence of these three essentials
facts thus inferred. the court may next in
Ter that this pier did sink and break and
the iron columns, beams and parts of the
second and third floors gave way and fell"
The Indictment does not allege the cause
or the sinking and breaking of the pier and
OF the falling of the floors. 1t does not
allege the cause of the disaster. but re-
quires the court to infer II. AS the Court
of Appeals have said, such an omission
cannot be supplied by lntendment or i'm
plication, the omission of any fact or cir
cumstance necessary to constitute the Of
fense is fatal"
Finally, If this Indictment be taken to
correctly allege a personal duty upon Aims
worth and personal neglect of that duty
IL does not appear even then to bring the
case stated against Ainsworth upon the
face of the indictment within the rule Of
criminal liability prescribed by the Court
Of Appeals, that to make the party
guilty of 1t liable to the charge of felony
such neglect must have been DersOnal and
the death that ensued must have been the
immediate and direct result of that personal
neglect of duty" (Ainsworth ct al. VS.. U.
S, Wash. Law Rep, vol. u, D. S1.)
1t does not appear that the death of Lof-
tus that ensued from facts alleged, If
taken to be correctly and fully alleged, was
the immediate and direct result of the per-
sonal neglect by Ainsworth of his personal
duty sought to be charged on the face of
the Indictment 1 sustain the demurrer.