Evening star. [volume] (Washington, D.C.) 1854-1972, 1894-12-29
MOTION OVERRULED
Capt. Howgate Must Plead Again
to Indictments.
MR.. BIRNEY SUSTAINED
Arguments by the Counsel in Court
Today.
A n z W D E NJ U r r E r

Arguments on the pleas in abatement
filled by Capt. IL. W. Howgate yesterday
TO the three indictments recently returned
against him was resumed this morning
before Judge McComas in Criminal Court
No. l. When The Stars report of the case
closed yesterday afternoon MIR. A. s.
Worthington had not concluded his argu-
ment in support OF the pleas. He con-
cluded in few minutes today, however,
being followed by District Attorney Bir-
hey, who briefly replied.
The arguments were concluded about
IL 80. and then, after devoting half an
hour or more to the preparation Of his
opinion, Judge McComas sustained the dis
trlct attorneys demurrer to the pleas.
DiIatory Plea.
The plea in abatement was a dilatory
one, said Judge McComas, and required the
utmost certainty and accuracy in its alle-
cations. Such accuracy, he thought, had
not been observed in the pleas in abate-
ment filed in the present instance Such
pleas referred to divers persons unknown
Dy the defendant, who were alleged to
have appeared before the grand jury and
were not sworn. No affidavit was attached
TO the pleas save that of the defendant to
show that the facts alleged in the pleas
were true. Therefore, tie rule requiring
the highest degree, of certainty and precis-
| ion in such pleas was not observed
AS 10 the allegations in the pleas which
| charged that the grand jury heard and
considered the testimony of unknown per-
sons as to the fact If the defendant being
fugitive, etc, and who had no hnowl-
edge of the facts, the pleas signally emit
ted to designate who those persons were.
Hence, the pleas did not deny that persons
| who did have knowledge Of the facts testi-
| fed. So, too as TO the third section In the
| pleas, which referred to the defendants
| whereabouts from April IL. 1889, TO Septcm-
| ber %, 1884, the name by which he was
| known during that time, and that he
| grand jury found the indictments without
| hearing any testimony at all on those
| points. For there was no allegation in the
pleas that none of the witnesses whose
| names were indorsed on the indictments
| had testified to The facts stated.
| The defendant had not, as he was re-
quired to do, made known to the govern
| ment in the pleas such facts as would have
enabled the prosecution to make good the
indie tments; The court, therefore. could
| but conclude that the pleas were INSULT
cient in form and bad in substance.
Grand Jury Room.
1t was no right of the defendant, said
Judge McComas, to be informed of the
particular evidence on which the .adict-
ments were founded, nor of the manner in
which the grand jury proceeded If cuch
| trivial and light objections were allowed.
| there would. said Judge McComas he few
| trials of criminals and the ends OF jsstice
would be defeated in many instances.
| If there Were grave irregularities in the
| grand jury room the court might in its
| discretion, allow an inquiry to proceed
| ingS there. But In the present case, said
| Judge McComas, the allegations in the
pleas were in the ordinary terms and with
out that certainty and precision which
would warrant the court in believing that
he matters contained therein were true,
l graI in hat tf,nsn he -lx
! procedure and integrity of The grand jury.
| The demurrer filed by the government to
| the pleas in abatement, concluded Judge
| McComas, would therefore be sustained.
| District Attorney brney thereupon ask
| ed that Capt Howgate be again arraigned
| and required to enter another plea to the
| three indictments. Before that WAS done,
| however, recess was taken at l2:l0 until
| 1.l5.
After Recess.
| When the case was resumed after recess
Mr.. Worthington filed a motion to quash
as 10 each of the three recently returned
| indictments, stating that the motion was
substantially the same as the pleas in abate-
ment Mr. Worthington explained that be-
| cause of the similarity between the mo-
| tions to quash and the pleas in abatement,
| coInsel for the defendant would argue
| them He would, however, ask the court
to allow the defendant an opportunity 20
| prove, by the testimony OF District At
| torney Birrey and his assistant Mr.. levin,
| that the allegations in the motion 10 C-iash
| arc true, and also 10y the testimony Of
| other witnesses.
| Judge McComas suggested that the dis
| trict attorney might IL he so desired, make
a statement, but MIR. Birney declired to do
| so, stating that he preferred To rely on his
| rights as the representative of the govern
| ment not admitting that such an inquiry
| could be made. MIR. Birney, however, in
| reply TO an inquiry from Judge NCCcmas
| stated that several of the witnesses whose
| names were indorsed on the indictments
| had testified to the fact that Capt. How
| gate was fugitive from Justice.
| Counsel for the defendant objected 10 the
| question and answer unless they were per-
| mitted TO cross-eXamine Mr.. Birney Judge
| McComas cyerruled the objection, to which
| the defendant excepted, and then the court
| oVerrued the motion to quash
| That done, Mr.. Worthington filed n de-
| murrer to each of the three new indict-
| ments, declaring that the indictments were
| fatally defective.
| The demurrers were similar to those filed
| several weeks ago against the old indict-
| ments and Judge McComas adjourned the
| hearing until 30 Monday morning, when
| the demurrers will be argued.