The herald., 1895-11-26
Frank Lowry Will Probably
Go Scott Free
1T IS A WEAK INDICTMENT
The Ruling Allowing the Demurrer Com.
men.ed On By Barristers
II Is Alleged That the Present Grand Jury
Cannot Again Consider the Lowry
Embezzlement r1atter

1t certainly looks as though Mr.. Frank
Lowry, who. as chief deputy county
CLERK according to the grand jury's inves-
tigation, EN- :zled $l35i.95 of tho money
OF TIE taxpayers, was about 10 make rood
his bluff. Mr.. Lowry has all elong
claimed that he was innocent and that
he did not profit by the money which
the records show he extracted from the
county clerks oHce in October and No.
vember of 1894. He has absolutely de
clin"d to make any explanation as to
what became of the money or who got it,.
lie has said that it was not necessary for
him to explain.
In this last assertion Mr.. Lowry is,
perhaps, in one sense, correct. He prob
ably will not have to explain what be-
came nf that stolen money to save him
self from the penitantiary. His at orneys
have s'enped j and awaited themselves
OF possible technical weaknesses in the
indictment the grand jury has presented
against him, and on this technicsl ground
the in tictment has been demurred out
OF court.
Yesterday Judge Smith allowed the
demurrer offered by Henry T. Gage on
behalf of Lowry. The demurrer was
bdSeu Ou Tue IaCt tUdI III ulI not appear
in the body OF the indictment when the
indictment was found, in urder that it
might show that the offense charged was
committed prior TO the finding of the in
dictment.
At best this is very peculiar ruling OF
Judge Smiths. To quash an Indictment
on the ground stated is regarded bv at
torneys as a uuibbIng procedure. The
supreme court is on record in regard tC
the matter, and that tribunal does moi
| apparently agree with Judge Smith as to
what constitutes the sufiiciency of an in
dictment.
In the Goth California, page 500, the
case of the people VS.. Squires is reported.
| In that case the evidence was heard by
the grand jury, passed on by that nody,
| indictment found, reported and FLED in
orsn court, all in the same daytime 7.
1892. The ground on which it was sought
to set the indictment aside was that il
did not charge an offenss committeG
prior to the time that it was found. The
| supreme court held: 1T, accuse enc OF
| the commission of crime is to charge
| its commission prior TO the accusation
and, as already stated, to ac-
cuse is to state that the act charged was
| committed prior to the accusation"
This would seem to cover the case al
the Lowry Indictment exactly. Then
another thing--every Indictment that has
has been drawn as tho Lowry indictment
was. Able attorneys, in the matter OF
the Edelman indictments. in the Cohn
| indictments and in other cases, tried hard
TO have them knocked out on technical
rounds and failed. They were dawn
weak; they were weak. But they were
held to he strong. 1t remained for Judge
| Smith to lind out that the Lowry indict-
ment and all other indictments that have
| been found for ten years are insufficient
| Now, what is the effect of t0is ruling
| OF Judge Smith? 1t is to raise questior
| as to the prosecution of this man Lowry.
His lawyer claims that under tba penal
code the present grand jury cannot again
considrr Lowry's case. he section ~
ferred to is section 1908, which reads as
follows:
I'll the demurrer is allowed, the judg-
ment is final upon the Indictment or in
formation demurred to, and is bar to
another prosecution for the same offense.
unless the court, being OF the opinion
that the objection on which the demurrer
is allowed NAV he avoided in a new in.
dictme t or information, directs the case
to be submitted to another grand jury,
or directs a new il formation to be fled
prov ded, that after such order of re.
snm bissiOn the defendant may pc ex,
amined before mag istrate, and div
charged or committed by him, as in
| other cases.
MIR. Gage holds that the words "an.
other grand jury" do net mean this
grand Jury that has already considered
| Mr.. Luwry's enlightenment once. But
Judge Smith hold- that section 997 of the
penal code gives the present grand jury
authority to look again into the matter
anu to return another Indictment. Tna1
| section reads:
The ofion must be heard at the