The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-08-15
CIRCUIT QUITS JAIL
ON DOUBT ORDER
Justice Scuddcr CriticiscS
County Judge Lewis: Says
Trial Was Illegal.
BAIL OF $1,000 PROVIDED
Decision Based on the Courts
Acceptance Of Alleged Faulty
Indictment.
BAIL OF $1,000 PROVIDED


Edward ~ Grout was released on
S. 900 bond from the Raymond street
Jail in brooklyn at 4 :02 o'clock yester-
day afternoon, Supreme Court Justice
Townsend Scudder having granted
certificate Of reasonable doubt on the
ground that the former city Comptro'-
ler's trial and conviction for perjury IN
the Union Bank case were made void
by an error In the indictment.
In his written opinion Justice Scud-
der criticised the trial Judge, County
Judge Henry Lewis for refusing to dis
miss the indictment in the first few days
Of the trial. which went on for nine
weeks. Mr.. Grout was tried on an in
dictment which charged him with sign
ing and swearing to false report a.
president OF the Union Bank There
were two reports, one sent to the State
Banking Department and the other
sort OF duplicate, which was sent to the
newspapers for publication.
When the matter came before Justice
Scudder In routine way District At
torney Cropsey asked that 1t he trans
ferred to some other Justice charging
that Justice Scudder had shown bias In
favor of the appellant by comments
made from the bench during argument
on a motion which came up before the
trial.
Justice Scudder denied bias but ex-
pressed willingness to transfer the mat
ter IL he could find another Justice who
In the opinion written yesterday he re-
ferred to this briefly, holding that the
law compelled him TO act.
broth URst-ns tO jail.
The decision was handed down at 3 80
O'Clock, Mr.. Cropsey had been notified
and was represented by Assistant Dis
trict Attorney Ralph Hems,ree,. who Of
fered no objection to either the amount
or form OF bail The release papers
were handed to Paul Grout. the for
mer Comptrolier's brother, within a few
minutes. and he hastened to the Jail. a
dozen blocks away
II is understood that the convicted man
will pass to-day at his city home with
his wife. son and daughter.
Justice Scudder held with the Grout
defence that District Attorney Cropsey
described the wrong bank report indict-
tlaf I.T l.. a
should have been thrown out Of court
when stephen e. Baldwin. counsel for
Grout. brought the error to the court $
attention. Instead. Judge Lewis held
certain parts OF the indictment to he
'surplusage"and permitted the trial to
proceed. Justice Scudder charges.
This surplusage had particular refer
ence to matter that appeared In the
printers copy of the bank report,
notably an insertion written In by Grout
himself which stated that bills payable
amounting to over Sl,000,O0O did not
mature until December. 1910. when they
really matured six months earlier.
As this did not appear in the official
report Mr.. Baldwin contended that the
REL ort described in the indictment was
not the report to which his client swore
as prescribed by law. The printers
copy is not necessarily sworn to. That
being the case his client had not COM
mitted perjury as charged. for he had
never sworn to the report described in
IT." Indictment, according to Mr.. Bald
win.
Indictment Amended.
In upholding this contention Justice
Scudder said:
"In other words the defendant was
indicted upon one affidavit and con-
v!Cted upon another. A trial Judge
without violating the Constitution cam
rot amend an indictment The learned
trial court in this case by its rulings
In effect did amend the indictment so
as to place defendant upon trial for n
different crime than that set forth In the
indictment, and tried him for an offence
foi which he had not been indicted by a
Grand Jury. The Indictment charged
the defendant with perjury. The act by
which such crime Is committed Is an
oath."
Justice Scudder pointed out that the
two reports were not identical and called
attention to differences which were en-
phasized in the indictment. which left
no doubt in his mind that the Grand
Jury had the printers copy in mind
and not the official report to the Banking
Department when II voted true bill.
He said further;
THE court was without power to sub
stitute one act for another as the as!s
of the Indictment. There IL no power
in trial Judge to ndct. Yet that
is what happened here. The indictment
upon which the defendant was brough,
to trial alleged no crime II the views
expressed by the learned trial Judge
are correct. because II alleged no falslty
, in any oath required 10y law. The de-
fendant was tried and convicted of a
: crime for which he had not been in
! dicted. and for which. without indct-
m.nt, legally he could not be brought to
trial.
Proceedings Illegal.
/ The motion upon the trial to dismiss
1 the Indictment should have been granted
I All proceedings had subsequent thereto
/ were Illegal and void, in my opinion"
The former city official was committed
to the Raymond street Jail on July "a
The verdict OF guilty was returned al
10 81 o'clock on that saturday night b,
"A jury that had deliberated for fifty
| three hours. The trial, II was said yes
! terday. cost the state over $4,000 on
| July 81 Judge Lewis sentenced Grout tC
a minimum tarm Of one year in Sins
Sing, but granted stay of execution
! pending decision on motion for a Ger
| tihcate OF reasonable doubt Suprem,
| court Justice Kelly granted AN order n