The Washington times., 1894-11-25

Capt. Henry W. Howgate, charged with
sing for himself government money while
disbursing officer In the signal service thir-
teen years ago. was before Judge McComas
yesterday for hearing upon the objections
of his counsel to the indictments found against
him at that time. Not over twenty-five per-
sons outside court employees were present and
most OF these were lawyers.
Capt. Howgate appeared to be In good
spirits and in fair health despite his confine-
ment. He was thoroughly alert and whispered
occasionally with his counsel, A. S. Worth
ington. He is evidently quite hopeful that no
case can be made against him, as was pointed
out by TIE TINES when the demurrers were
first fled.
The present indictments were then be-
ieved to be defective, for the reasons given,
and the attempt to obtain new indictments,
it was stated, would be attended with diff
culties, while conviction would hardly be
possible. The reason for this, as stated was
the lack of evidence occasioned by death and
removal of witnesses and loss of papers. The
disappearance of papers from the Treasury
and ex-Chief Drummond's denial that they
had disappeared in connection with his leaY-
ing the service were even then ancient his
tory.
In the argument yesterday Mr., Worthing-
ton urged, as the demurrer states, that the
indictments fail to state that Howgate's use
Of the money was TO the injury of the govern
ment. The statements were not sufficiently
definite to acquaInt the defendant with the
special offense he was charged with, and
nothing was more certain in law than that a
prisoner had Il right to know exactly and
fully the charges against him. The drawer
OF the indictments, however. had contented
himselfwith making the charge in the words
Tn, hfars tzfa
Of the United States Supreme Court.
at considerable length he gave illustrations
Of how a COVE rnment officer might use gov
ernment money technically for himself and
vet without intent to cause loss ard without
loss to the people. Intent to defraud was the
essence of the charge intended, and yetit was
not charged, nor could it be inferred from the
language used.
Furthermore the indictments failed to de-
scribe the funds which it was alleged How
gate misappr opriated. Such a description
was invariably required in the courts here,
and there was no reason to change the rule in
this case.
Finally there Was no cnarge thas Capt
HoWgate was a dis6ursing oificer ofthe United
States. For these reasons the indictments for
embezzlement ought to be thrown out. IL the
forgery cases he gave the additional reason
that the indictments failed to describe the
papers forged.
In concluding Mr. Worthington stated that
the defective papers were drawn at a time
when special counsel was always employed
by the Department OF Justice for such cases,
and as IN the Star Route cases, so in this
case, the custom resulted in failure.
W. NJ. Levin replied for the government
that the cases cited by Mr. Worhington in
support Of his assertions were quite different
from the present. Such oIcnses as How
gates, he said, were made a special class by
Congress. The government could not be
bound by precedents in ordinary cases. he
read the statute and pointed out the differ
ences Of this case from the cases cited by Mr..
Worthington.
Mr.. Birney closed the case for the govern
ment by reading very numerous authorities
in support OF the validity OF the indictments.
He asked Mr.. WorthiRgton to produce sin
gle authority which holds that the method of
embezZlement must be particularly set forth
as he had asserted. lie cited United States
Supreme Court and State cases with reference
10 the extent TO which an indictment must go
into detail, and urged that they made il clear
that the prosecution could not be called on
TO state its whole case and negative the de-
fense in the presentation OF its indictment.
II has been inferred by many that Mr..
Birney places no dependence upon the in
dictments argued yesterday. but the care and
labor bestowed upon the preparation of he
defense OF them gives no indication of this.
Mr.. Worthington will close for the defense on
Monday.
Witnesses have already been summoned in
order TO secure new indictments. and other
material has been gathered wherever it could
be found. 1t is stated that hearing OF wit
nesses began before the grand jury Yesterday.
There was gossip yesterday that il the papers
at the Treasury, which were missed some
weeks ago, could not be found. as they have
not vet been, the case against HoWgate would
completely break down.
The TINES can say for me-. said Mr.. Bir-
uey yesterday, that this is not at all true
A conviction can be secured without them us
we'll as with them. All want 10 know is
either that they have been found or that
they cannot be found. l think We have good
case and shall WIN IT,