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

IT WILL NOT HOLD
The Latest Indictment Against Col.
AinSwOrth Quashed.
JUDGE MCCOHAS' OPINION
He Follows Rules Laid Down py
the Court Of Appeals.
DEFECTS POINTED OUT
DEFECTS POINTED OUT

Judge McComas this morning disposed of
the demurrer fled by Col. Fred. e. Aims
worth to the indictment recently returned
against him charging him with man
slaughter in being criminaliy responsible for
the death Of Frederick B. LOTUS, of the
victims Of the FOrl's The1ter disaster of
the 9th Of June last. The demurrer was
sustained. Judge McComls holding hat the
death Of LOTUS did not appear to have
ensued from the immediate and direct re-
suit Of the personal resiect by Coz. AIS
worth Of his personal duly.
The announcement in The Star that the
decision would be delivered this morning
served to fill the court room, and Judge Nc
Comas' elaborate opinion received the clos
est attention of those present. Col. Aims
worth was not present, but ex-COnSTessman
Ben Butterworth and Mr.. ]. n. Morrison
OF his counsel were present. District At
tOrney Birney and Mr.. hugh t. Taggart
appeared on behalf OF the government.
The Opinion.
The opinion of judge McComas was as
follows:
The disaster at 'Ford's Old Theater'' on
the 9Th day Of June. 1893, was followed by
Indictment of Ainsworth. Dant. Covert
an1 Sasse for rnaLslaughter. / overruled
the demurrer to that indictment and re
quired the defendants 10 plead. The Court
OF appeals reversed my ruling and remand
ell the cause. in order that the indictment
might be QuaShed.
\ new Indictment of Col Ainsworth alone,
for manslaugh5er. charging him with
omission or neglect OF duty. whereby was
caused the death of Frederick B. LSftus,
before me upon demurrer.
The opinion of the Court Of Appeals
respecting the former Indictment prescribes
the certainty and preciseness Of allegation
requisite to this Indictment
The Court OF Appeals further state the
rule Of criminal liability for culpable negli-
Gence thus: 'Facts must be averred on the
face Of the Indictment to show that there
was in legal contemplation a common
like personal duty on the part of each of
the Defendants, and the facts averred must
not only show the neglect OF that duty, but
10 make the party guilty OF it liable to the
charge Of felony, such neglect must have
been personal and the death that ensued
must have been the immediate and direct
result Of that personal neglect OF duty
(AinswOrth ct al VS.. L. S. Wash. Law Re
porter. SlOD
The Demurrer Sustained.
This rule and the particularly of the al
legations of such an Indictment, insisted
upon by the Court of Appeals. requires me
to sustain the demurrer to this Indictment.
The former indictment was long and elab-
crate. The present indictment is more vol
luminous. Judge McCOmas then stated
what the material allegations in the indict-
ment were. and then proceeded as follows:
This indictment does not charge that
AinswOrth assumed duty and neglected
the duty he had assumed. nor that he had
an individual personal duty which he ne
elected. The Indictment attempts to charge
him with official duty. and with the ne
glect thereof. II AYERS that Ainsworth. be-
ing the chief officer and head of the divi-
sion, and such having charge of the
''FOrds old theater' building. and of the
persons employed therein, distributed the
clerks over the three floors; that he recon-
mended that the alterations 10 admit an
electric light plant into the building be
made; that he approved the drawing and
specifications for this work, and requested
that advertising for bids therefor be author
lied. and that the contract with Dant be
approved. In addition and whether in his
official or individual capacity is not clear,
the Indictment AYERS that Ainsworth added
two clauses to the Specifications prepared
by Sasse for introducing the electric-light
plant and approved the drawing and speci-
fcatiOns; that the contract between Thorp,
chief of the supply division of the War De-
partment and Dant contained. among
other provisions. these two clauses added
10 the specifications by Ainsworth:
Clauses Added by AinswOrth.
l. "An excavation must be done at such
times and in such manner as the officer in
Charge of the building may direct, in order
that the work of underpinning and building
walls may be safely and properly done"
2 "Au work to be done in first-class
manner and to the satisfaction of the Of
fcer in charge of the building" and the in
dictment charges that Ainsworth was the
person designated in the contract as the
officer in charge OF the building"
The Indictment then AYERS that these two
clauses of the contract between Thorp and
Dant were intended to and did invest Aims
worth with the right and power to superin-
tend the work of Dant and his workmen, to
direct them when and in what manner all
excavation should be done and required
him to give them such instructions to
time and manner of excavation as would
Insure the stability of the building and the
lives Of persons in It.
1 need not consider whether the Secretary
OF war by approving the contract could
thus devolve a duty of such a nature on
AinSWCrth, nor whether the indictment
shows he did require such duty of him, nor
whether II shows that Ainsworth received
notice that such duty thus devolved upon
him. because the charge of duty which the
Indictment makes against Ainsworth de-
pends entirely upon the construction which
the pleader who prepared the indictment
places upon these two clauses of the con-
tract between ThOrp and Dant.
Now, the construction of this contract in
writing is for the court The court cannot
construe this contract in writing unless the
whole written contract be set out either
by It's tenor or al least by its purport a
full and complete statement of It's SUBJ
stance. Even an Isolated clause must be
judged by its context. This indictment re-
Guires me TO determine from a part of a
Written contract. whether the whole written
contract. TO which Ainsworth was not n
and did invest Ainsworth with rights and
powers" which imposed upon him a duty
the neglect or omission of which by him
by reason Of the consequences of such neg
iect Justities this indictment.
Radical and Fatal Defect
Because every contract in writing must
De taken together and constructed as q
whole, and because the whole of this con-
tract in writing between Dant and Thorp
Is not spread before me in this Indictment
IL IS impossible for me to determine whether
or not the contract was intended to invest
and did invest Ainsworth with certain
rights and powers, imposing n certain duty
charged in the Indictment. This defect is
Idulcal and fatal TO this Indictment. If
could attempt to cOnstrue these isolated
clauses. they do not seem to import all
that the Indictment concludes was intend
Ell Dy them The first clause appears to
require that excavation be at such time
ana IN such manner as the officer in charge
OF The building may direct in order that
the work Of underpinninS and building Of
MaLs may be safely and properly done
ne Indictment AYERS that by this clause
AlnSworth was required to give Dant and
MS workmen such instruction as 70 time
ana manner of excavation as would insure
the stability OF the building and the lives