The Bennington evening banner. (Bennington, Vt.) 19??-1961, 1912-07-17
A LEGAL TEcHNlcALITY
That Invites the Contempt Even of a
Legal journal.

Outside the legal profession the on
ly man who will not smile when he
reads the Illinois supreme court de-
cision, in thhe case against George
Clark, charged with operating a conf
dence game, is John Dembinski, thhe
victim of the game.
The decision in question reverses
verdict which provided term in
the penitentiary for Clark, and fur
nished, substantially, the only salts
faction DembinsH got out of the mat
ter. AS it was among a large num-
Der of opinions handed down when
thhe court adjourned, it escaped the
attention of thhe press, or, If seen,
presented so small an element OF
news value that the mere title of the
cause was given publication with
out comment.
The original indictment charged
that Clark did unlawfully and felon-
iously obtain from John Dembinski
his money by means and use of thhe
confidence game" He was tried, and
after a petit jury had declared him
guilty a sentence of 10-years' impri
sonment in the penitentiary was i'm
posed upon him.
The case was appealed to the SUI
preme court, Clark's. counsel setting
up the usual charges of irregularity
in the process by which he was
broughtto justice, insisting that the
indictment was faulty, that the trial
was improperly held and that the find
ing was not justified. Particular EN-
lrh rN1apnA tho form 0f
the indictment, and it is upon this
phase of the proceedings that the de-
cision of the higher court rests.
The opinion declares that the
presentIment was indefinite inasmuch
as it failed to point out whose money
Clark secured from Dembinski! AS
indicated, the indictment says that
Clark obtained from Dembinski his
money" and the court is possessed
of the idea that this statement may
have misled someone, being subject
to misconstruction. The pronOun
his" it maintains, might correctly
refer to the defendant as to Dembin-
ski. ut would be as easy" it contin-
ues, ito say that the defendant OBJ
tanned his own money from Dembin-
ski, as that he obtained the money
of Dembinski."
That the opinion rendered in the
case might be made still clearer, the
court adds: "a conclusion that the
pronoun referred to Dembinski ra-
Their than the defendant couIu only
be sustained on the ground that the
grand jury intended to charge the de-
PENDANT with a crime"
Since, in the opinion of the court,
so violent an assumption would be
contrary to all rules of criminal
pleading it is wholly out of thhe ques-
ton to figure that the grand jury was
endeavoring to accuse Clark of doing
criminal when it indicted
him. And since it has no other
means of determining, from the in
dictment, whether the grand jury
was trying to bring Clark to trial for
getting Dembinski's money in an I'M
lawful manner, or was simply record
ing the unusual circumstance of a man
"unlawfully and feloniously" obtain
ing his own money. thhe trial is ir
regular and the case must be revers
ed
oolely OH dCCOuht vi lhdI htlie pio
ing his own money. the trial is ir-
er, the investigation of the grand
jury, the. trial and the judgment of
court of justice must come to naught
Occurrences of this character, of
course, are to be regretted.
We should add that Chief Justice
Carter filed a dissenting opinion in
this case. holding that it seems clear
to me that the pronoun his referred
to Dembinski and not to Clark. -
From the Green Bag.