The record-union., 1896-05-10

the common law system, which has
never allowed a proceeding to establish
guilt to be inquisatorial. The affi-
davits in the records show that the de-
fendant was taken from the jail where
he was held in custody, and taken
Before the Grand Jury, where he was
examined touching the very matter on
which the Grand Jury found an indict-
ment against him, and on which he was
placed on trial. A right of the highest
character was violated. a privilege sa-
credly guaranteed by the Constitution
was disregarded. q dangerous fnnova-
ton in the uniform practice in this
State made. A danger SO great, if ii
once became a rule of law, that one
ignorant of his rights, and, it may be-
also of his danger, unattended by coun-
sci and unprotected by a court, could
be called before Grand Jury and in
terrogated, and, as he may believe
compelled to answer charges made
against him on a subject matter of in
vestigation then before that body, in
which his interest Is vital, that we will
not stop to inquire into the question
as to whether the indictment was found
on that testimony alone, nor whether
that testimony influenced the finding
where, as here, the defendant is in Gus
tody charged with crime, and whilst
I so in custody is taken from the Jail to
be examined about the subject matter
1t is sufficient that so important a
right was violated, and such proceed
ing had where an indictment was found
under such circumstances"
In the case above quoted the defend
ant was in custody of the law, and in
the case at bar the defendants, though
not in custody, came under the juris-
diction of the court, and, in obedience
to it's commands, appeared before the
Grand Jury as witnesses, they were
acting under restraint; they had no
counsel to advise them of their rights.
and the matters upon which they were
examined were not of a character to
have necessarily suggested to them thc
fact that their testimony was to be
used against them.
In order that the Grand Jury could
have found this indictment against the
defendants, it was indispensably neces-
sary that it should have been proven,
first, that they were officers of the cleo
tion; and, second, that they knew that
dead, or that they had been person
ated-and these were the facts about
which the defendants Brown, Ander-
son, Simmons, Gregory and Taylor did
testify-and for the purpose of indicting
one for having personated Smith and
Pressey, and fraudulently voting, it
would have been equally as essential
to have proven, at least, that there was
g legally constituted Board of Elec-
ton, and that Smith and Pressey were
dead, or had been personated, hence
these defendants could have reasonably
concluded that the object of the Grand
Jury was to find indictments against
other persons who had personated
Smith and Pressey, and had fraudu
lently voted. Their testimony was not
incidental to the matter that was un-
der investigation by the Grand Jury,
but went to the very gist of the mat
ter, without which proof the indictment
could not have been found; hence, to
hold that testimony SO ELECTED can be
used against these defendants would
not only be a very dangerous innovation
upon the rights of citizenship but a
violation of statutory and constitu-
tional right.
1t therefore necessarily follows that
the motion to set aside the indictment
as to the defendants j. r. Browne,
George Anderson, I. ]. Simmons, Frank
Gregory and B. L. Taylor should be
granted, and it is so ordered, but as
the testimony taken at the hearing of
the motion did not show that the de-
PENDANTS George Wagner, George
Brady and George French testified be-
fore the Grand Jury, the motion as to
them will be denied.
The purity of elections is the greatest
safeguard to the rights of citizenship
and Of our republican institutions, and
as the charge made against the defend
ants is of a very serious nature, and
as it may be that evidence can be pro-
cured, independent of the testimony
Of the defendants, sufficient to warrant
the finding of indictments against those
defendants whose motions have been
granted, it is eminently proper that the
matter should be referred to a future
Grand Jury; and it is ordered that the
same be referred and resubmitted to the
next Grand Jury to be impaneled in
this county for it's investigation.
A c.. HINkSON, Judge.