The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1909-01-10

In the case of Mutt versus the state. |
which will be found in the Sixty-third |
Alabama State Reports at page $50, the |
prisoner, Mutt, was indicted for the |
murder of Luke Hodnett by striking
him with gun. Mutt objected to go
ing to trial on the ground that a copy
of the indictment had not been served |
upon him, inasmuch as in the alleged
copy of the Indictment served on him
the name of the deceased was spelled
Luke Hadnett' instead of Luke
"Hodnett, as it was spelled in the
original indictment. The copyist had
brought the loop after the CO., down a
thirty -second of an inch too far. The
court overruled the objection and re-
quired the defendant to proceed to trial.
The defendant was convicted and ap-
pealed. The original indictment, on
which the defendant was tried. in which
it must be remembered the name was
/. correctly spelled, and the copy served
on the defendant, were, in the original
form, carefully carried before the su,
preme court of Alabama. We can al
most see this great court. adjusting its
nose glasses, or taking a microscope,
and carefully examining the two papers,
and then delivering itself of this pro-
found opinion:
"The lawyer required that tn de-
/, PENDANT be served with a copy of the
! Indictment. The reason of this statute
is that the accused may be informed
of the charge against him, so that he
may prepare for his defense. The in
dictment charges the murder of Luke
Hodnett. The paper served as copy
describes the slain as Luke Hadrott.
! 1t follows that literal copy of the
| Indictment was not in fact served on
the defendant. The variance in the
present case may. appear slight, and
possibly it may be assumed that the
defendant was not misled by it. Still,
it is a variance. A copy of the indict-
ment was not served. If we wer" to
disallow this objection on the ground
that the variance did not mislead, we
would enter upon an uncertain field of
probabilities, and know not where we
would find limit. Better to err in
favor of life and liberty than to enter
upon ground SO dangerous.
Six months ago deputy clerk of one
of the district courts in Montana was
convicted on two charges of forging
warrants in the names of fictitious per-
sons. He had confederates who obtain
ed the cash from the county treasurer
on these warrants The amount of his
peculation was something like $4,000.
He was sentenced on the two charges
to several years imprisonment. His at
torney went to the supreme court on
the issue that the copies of the war
rants or certificates as set out in the
indictments failed to show that the
seal of he clerk of the court was at
, tached to them, and that in the alb
sence of such seal, which was required
bv law, the warrants or certificates were
void, and no crime was committed. The
supreme court sustained this conten-
ton, and the deputy clerk is now a
free man, although one of his confed-
: crates, weighed down by the sense of
, his own guilt and the disclosure Of it.
? died as an indirect result. Yet no law.
yer educated under the present system
will question the correctness of this
), decision if judicial presidents have any
e force at all.
e In another case, a case of cold blood
:, ed murder, the prosecuting attorney
o neglected, by one of those unavoidable
mental lapses to which we are all sub
t iect. and which no one seemed to hav'
/ discovered until too late, to set on
e in the body of the Indictment the nam
of the county where the murder wa
l. committed, though the name appeare'
g in the caption There were any numbe
l. of instances which advised the. defend
a ant of the venue of the crime. Al
lie through the trial reference was mad
# to the exact locality. 1t was prove
n beyond cavil. The defendant himsel
le took the stand described the place, an
y, named the county in the telling of hi
e. story. He did not know that he ha
Or not been legally charged with erin
I'd in that particular county. In fac
he supposed he had. But after the cor
n viction of murder in the first degre
1t his lawyers discovered the flaw. The
1t raised the question, and the suprem
ey court, of course reversed the case. Ha
he the defendant been acquitted, his a
er quittal would have been legal. Ha'
ne ing been convicted, his conviction W;
ng Illegal