New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1896-05-08
NO PENALTY FORTHIS FRAUD.
PI.ATr INSPECTORS FREED BY RE-
CORDER GOFFS RULING.

THE PENAL CODE FAILS TO MENTION FRAUDS AT
POLITICAL PRIMARIEs-A LooPHoLE FOR
THE ESCAPE OF VICTOR mcguire
AND FRANK CANTwELIA
Victor Mcguire and Frank Cantwell, the two
Platt-Lauterbach inspectors who were indicted
for alleged violations of the Primary Election
law at the Republican primary at No. 24s Thomp-
son-st., In December last, were acquitted yester-
day by order Of Recorder Goff, in Part II OF the
Court of General Sessions. on the technical plea
that the law had provided no penalty for frauds
at the primaries The technical plea to save the
indicted men was presented by Abraham Levy
their counsel. who presented no other defence
to the charges Of fraud at the primary. The rul-
ing Of the Recorder caused rejoicing among the
Platt-Lauterbach adherents who were In the
courtroom, and the prisoners grinning with
Joy when they were discharged
ONLY TECHNICAL DEFENCE.
After the testimony for the prosecution had
been closed just before the noon recess. Mr. Levy
made motion that the jury be directed to acquit
on the ground that the facts proven did not
constitute a crime and did not sustain
the indictment. The lawyer argued that the in
spectors were not bound to conduct the primary
according to the rules Of the political organiza-
law proven. Then ne played his trump card by
arguing that the law provided no penalty for
fraud at a primary. Section Al of the Penal Code
he said declared that violation Of the provisions
of the law at political caucuses and conventions
was a misdemeanor, but there was no mention OF
q primary in the section.
There Is no mention of primary in the stat
ute under which this indictment was drawn, ne
said land We cannot strain the words OF the
statute and say that caucus or convention Is
a primary"
The motion to direct the jury to acquit was OPP
posed by Assistant Distrct-Attorney Lewis, who
argued that the terms caucus and primary"
were interchangeable.
1.-The meeting that precedes the convention has
been described in the statute and may be de-
scribed as either a caucus or a primary he sald
land 1t seems to me that the Legislature was
guilty Of a great omission and oversight If 1t did
not intend that caucus should include prim-
ary"
DECISION BY THE RECORDER.
The Recorder announced recess. and con-
sidered the motion Of Mr.. Levy while he ate his
luncheon. After recess he said to Mr.. Levy; 1
will deny your motion for the present" The
lawyer promptly said he would rest the defence
and call no witnesses. Then he renewed the mo-
on the ground already stated. The Recorder then
granted the motion and directed the jury to give
a verdict of acquittal He said in part:
These defendants are charged In this Indictment
with doing something at certain primary election
Of q certain primary caucus. The courts are pound
by the language Of the statute. 1t may be that the
Legislature has omitted to use the word primary,
as the Assistant DisrictAttorney says. but we have
got 20 take the language Of the statute as IT is.
There Is nothing to show In this Indictment that
these defendants did these acts at political eau
Gus, but they did the acts at the primary election
Of q political caucus. These mean two distinct and
separate proceedings. / therefore on this question.
after such careful reflection and time as could de-
vote to It, am Of opinion that the word caucus
cannot be construed to mean and embrace the
primary election Of caucus.
The Recorder went on to say that in New
York City 1t was generally understood that the
primary" the caucus and the Convention
meant three Distinct things. Then he con-
\ tinued:
But. apart from that, must stand on the Ian.
guage Of the statute. If this indictment had charged
that these acts were done at caucus there would
not be much doubt; but 1t charges that the acts
done at a primary election OF a caucus. ! am
therefore, constrained, the language OF this In
dictment, 70 grant the motion Of Mr.. Levy for the
acQuittal Of the prisoners therefore advise this
jury to acquit these defendants. l~fx.a