The Birmingham age-herald., 1906-05-16
GRAND JURY HEARS CHARGE OF COURT HayneS-Hewlett Rencounter Will be Investigated JUDGE DEFINES THE LAW "New York Harry" Case Taken Up First-Preiminary Trial of
 Haynes Set for This
 Afternon.
JUDGE DEFINES THE LAW

The grand jury of Jefferson county con vened in special session yesterday morn l ing for the purpose of considering the re- cent rencounter between Thomas c. Hew-
 lett and Harry Haynes in the Peerless sa- 1 loon, which caused the death of Hewlett
 and John T. Shugart. Other matters will
 also be considered. Juror Charles ONeal,
 who failed to appear Monday morning,
 was present yesterday morning.
 The grand jury was called in special
 session by Judge Samuel L. Weaver and Judge NJ. M. Baldwin, about ten days ago. The charge to the body yesterday was made by Judge Baldwin, who is act ing for Judge Dan A. Greene. The latter is en route now to Europe for his health. Organization was perfected about noon and the case of James Rooney, alias
 Harry Dowd. alias New York Harry, was taken up This defendent was tried last week on a plea of mlsdemeanor, but
 q mistrial resulted.
 The preliminary trial of Haynes upon
 the charge of killing Shugart is set for this afternoon at 2 o'clock before Judge IT. B. Abernathy of the second division
 of the inferior court of Birmingham. Charge to Grand July.
 The following is the charge:
 "Gentlemen-Yo have been called to- gether to resume the discharge of the duties for which you were organized, and | to investigate certain alleged offenses, said | to have been committed In this county since you took a recess. While the court regrets to call you from your respective | arlfpr than the day agreed upon, yet no apology for such action is | necessary and the court offers none. Since you took a recess more than one | homicide has occurred In this county Only few days ago two men were killed in the Peerless saloon, which is situated | on the corner of Second avenue and Nine
 teenth street, in this city; and only short | time prior to that an officer of this city
 was shot to death on the Southside. It | is not for the court to say whether all, or any, of these homicides were unlawful or justifable. These matters are now sub mitted to you for your investigation; have | the witnesses before you, and if under | the law and the evidence you reach the conclusion that any or all of them are | indictable offenses, you will of course return true bills against the proper per | sons for the appropriate offenses. The court will not stop to charge you upon | the law of murder because you will have l the solicitor with you to give you his opinion upon the law applicable to any state of facts that may arise. However should you wish specific instruction from
 the court upon any point of law, you will make it known and the court will give you instruction in deai
 'I have also ordered the witnesses in | the case of the state vs. Harry Dowd, alias New York Harry, to appear before | you to testify to an alleged robbery, said
 to have been committed in this county some years ago. and if you find that such | alleged robbery is an indctable offense you will return a true bill against the | person whom the evidence shows should
 be placed on trial therefor
 Though you received an able and ex- | haustlve charge from the associate judge | of this court when you were organized | yet deem it proper to give you few additional instructions. Present conditions seem to make 1t necessary that you should clearly understand your powers and duties.
 Duty of the Body.
 Tn the first place, you have the right, and it Is your duty, to investigate indict- | able offenses committed in this county, | but while you have this right there is | no law in this state authorizing your in- vestigations to be inquisitorial. You have | the right: First, to investigate such mat | ters as may be called to your attention 1 by the court: second, such matters as | may be submitted to you by the prosecut- l ing attorney; third, matters where prose- | cutions have been begun before magis- l trate against individuals charged with | specific offenses; fourth such matters as
 may come to your knowledge from the | disclosures of your associates: and fifth. | such matters as may come to your know | ledge in the course of your investigations | Into matters brought before you and | sixth such other matters as may be re- l ported to you by competent witnesses tes- l tifying to specific offenses. It was for merly the rule to prepare indictments and l then to allow the witnesses to be eXamin- | ed by the grand jury touching the truth | or falsity of the charge preferred in said l indictment. As matter of fact the in | dictment is not drawn until the grand | jury have satisfied themselves that the | evidence is sufficiently strong to author | ize a prosecution: yet in so far the actual investigation is concerned it is still i necessary that it be directed to a specific | offense. except in one class of offenses l where the investigation by reason of leg 1 islative enactment may be general in it's | nature. Speaking of this matter our su- l preme court uses the following language: | But the investigation must not be in- | | class of offenses such investigation must l be directed to a specific end, and the | right to interrogate- witnesses Is con l fined to specific aims and objects. ' | There is no authority for constituting the
 witness a general informer. requiring him
 to tell all he may know. The inquiry must | be directed to particular act, trans
 action, or imputed crime. Anything be-
 yond this, except in one class of offenses,
 is unauthorized by any law, and is in its
 nature inquisitorial. It is unnecessary for
 me to explain to you why the investiga-
 ton cannot be inquistorial. But simply
 to mention one of the numerous req
 sons, for the purpose of indicating the
 justice and wisdom of the rule, I will say
 that if the investigation were of a general | and inouisitorial nature a witness who
 knowingly gave false answer to one of
 your questions would not be guilty of
 perjury. because the question: not di-
 rected to a specific offense would be
 immaterial and an immaterial question
 cannot be the subject of perjury.
 Question of Gaming.
 '.The excepted class of offenses referred l to- gentlemen, is that of gaming. In this
 class the statute authorizes the grand | jury to interrogate witnesses as to any
 such offense within their knowledge, with
 out specifying any particular act or trans
 action. When so nterrogated as to gam
 ing the witnesss is required to answer. 1 He cannot refuse to testify on the ground
 that he cannot be compelled to give
 evidence against himself for the law l specially provides that no witness can be
 prosecuted for any gaming offense as to