Evening star. [volume] (Washington, D.C.) 1854-1972, 1894-11-24
The Howgate Indictments Attacked
Before Juge McComas.
DECLARED TO BE FAULTY.
District Attorney Defends Them
and Quotes Authorities.
OTHERS IN PREP


District Attorney Birney and his assistant,
Mr.. W. NJ. Levin. appeared on behalf of
the government. and Messrs. A. s. Worth
ington and Jere NJ. Wilson represented the
defendant. The attendance at the hearing
was small, those present mostly being
members Of the bar. The defendant, at
tired in a neat business suit Of black, and
looking unusually well, was also present,
and was most attentive listener to all
that was said.
Mr.. Worthington opened the argument,
addressing himself first to those indict-
ments which charge embezzlement Those
neither informed the defendant of the Of
tense which he was alleged to have COM
mitted, nor did they place him In such a
position as to enable him to subsequently
successfully defend himself against the
same.
In the indictments was an allegation
that Capt. Howgate had converted TO MS
own use certain funds Of the United states,
but nowhere in them. said Mr. Worthing-
ton, was there even an intimation that the
defendant had converted the funds to MS
own use, to the prejudice or to the INJURY
of the United States. 1t was an undues-
toned rule OF practice, said Mr.. worth
ington, that an indictmen. must, with sur
ficient certainty and accuracy, acquaint
the defendant with the special onense al
legged to have been committed but VINO
ever was responsible for the indictments
in the present case, cOntended MIR. worth
ington, seemed to have considered IL amply
SUFFICIENT to charge the defendant In the
words of the statute.
In support of this position Mr.. Worthing-
ton quoted several decisions of the United
States Supreme Court, explaining that IN
view of those authorities 1t was unneces-
sary to quote the numerous decisions IN
the state courts to the same effect.
More Needed.
IL ,uo,,Il not do Soid Mr. Wort hin gtOn.
for the indictments to simply say that the
defendant converted the funds Of the
United States to his own use, for there
was not a disbursing officer of the govern
ment contended Mr.. Worthington, who
did not every day or so convert govern
ment funds to his own use. In making
change and in other ways, for the time
being; yet no one would seriously contend,
said Mr.. Worthington, that In so doing
disbursing officer had committed an or
Tense for which he was liable to SEN
tence of from one to ten years IN the
penitentiary. But, argued Mr.. Worthfng-
ton, that was all the present indictments
charged Capt. Howgate with, absolutely
and wholly failing to allege that the al
legged conversion was to the injury OF the
government. The indie tment, too, xgnally
failed to show how the alleged conversion
was made, explained Mr.. Worthington. and
as signally failed 20 allege that the alleged
conversion was unlawful
is the very essence of the offense sought to
be charged in the present case, said MIR.
Worthington, and such an intent could not
be inferred from the words of the tndict-
language with which many pleaders en-
deavor to fill gaps is used Such posi-
ton, explained Mr.. Worthington. was sus-
tanned by innumerable authorities, one of
them being found in the 153d u; 8. Reports.
The great fault with the indictments in
question, stated Mr.. Worthington. was that
in attempting to allege an offense they
merely contained a conclusion Of law,
emitting any and all facts Which would
enable the court to pass upon the question
of whether the defendant had or had not
committed the ofrense sought to be charged.
Funds Not Described. .....
There was another objection to the in
dictments charging embezzlement said
Mr.. Worthington, which was equally fatal
to them. and that objection was, they ut
terly failed to describe or attempt to de-
scribe the funds alleged to have been en-.
bezzled. Such a description. he commended,
had been the invariable custom of the
courts of the District, and the relaxation
of such a rule was not authorized by any
statute applying here. But there was. said
Mr.. Worthington, still another fatal defect
in the indictments alleging embezzlement,
GENTLY allege that Capt. Howgate was a
disbursing officer of the United States.
Forgery Charges. 60 80
Mr.. Wortbington next addressed himself
to the demurrers which assailed the in
dictments alleging forgery. They could be
disposed of in a very few words he said,
and the question was so simple that he
felt 1t a waste of time to argue it. He
could not help remarking that for a whole
sale tumble Of Inconsistencies and random
shots the forgery indictments were entitled
20, ho cha mir In, Thnyy nflS, foil A1
to allege that the papers alleged to have
been forged were forged to the prejudice
of the United States or any person. but
they also failed to describe the papers al
legged to have been forged. The forgery
Indictments, said Mr.. Worthington, were
so plainly defective that he really. did not
care to discuss them, being confident that
the court needed only to inspect them to
be so convinced. ,--.. ..-
In conclusion, however, Mr.. Worthington
said the indictments in the present case
were drawn at a time when II was; the
practice of the Department of Justice to
his office by appointing special counsel
for the government. Those special attor-
neys, explained Mr. Worthington, pre-
pared indictments and tried cases, but 1T
was a fact well known to the people of the
District that the practice. was a decided
failure, as the results In theI sfHr route
and other cases of the past years had de-
monstrated. Such was the prae tfce,, Said
indictments in the present cases had been
prepared, and he declared his belief that
they had been drawn by person who had
never prepared an indictment before and
had not prepared one since. .~-4.r
At the conclusion of Mr.. Worthing TOMS
al gument at 12:15 the court took recess
until l o'clock.
New Indictments.
AS intimatcd in yesterdays Star would
be tho case, District Attorney Birney issued
sumnorses yesterday for the appearance
before the grand jury of those witnesses
on whose testimony he expects to base the
new indictments to be returned against
Capt Howgate. These witnesses whose
names Mr.. Birney refused to disclose. ap-
peared before the grand jury today. 1t is
q most unusual thing for the grand jury
to sit On Saturdays, and the fact that that
body considered the matter today can well
be taken as an acknowledgment on the
part of the prosecution that the indict-
ments discussed before Judge McComas
will hardly successfully oppose the attack
made upon them. just when the new in
dictments will be returned District Attor-
ney Birney would not say today. .bat it is
thought that they will be in some time
next week. 3d..
1t has been generally believed that the
existing indictments were prepared by Mr..
VIM. A. Cook, who was specially engaged
by the Department Of Justice but 1t was
said today that they. were drawn up by