Year: 1878

N V
ner was crowded yesterday almost by the same people
who have attended every session Of the court In when
the Indictment Of the Board Of Aldermen has been under
discussion Judge Barrett had kept well the secret OF
his decision, but there strong feeling IN the as
semblaee that whatever the decision, trial was TO
be expected before Autumn. Hardly any one was pre-
pared for the decisive opinion actually gwen


Almost all the indicted Aldermen we're present with
their counsel John d. Townsend, A. J. Dttenhoeier
Elibu Root John W. Weed and Dudley Field David
Dudley Field was absent DistrictAttOrney Phelps and
Mr. Rollins represented the People. As soon as the
court was opened Judge Barrett read his opinion which
had been carefully prepared As the reading proceeded
interest deepened when it ended there was an out
burst of congratulations Of handwriting from which
even the Distrlct-AttOrney did not escape.


Judge Barrett's opinion, which adopts the two chief
poipts presented by Mr. Townsend is in substance as
follows:


Tbe ouashing of an indictment is within the discre-
ton of the Court not arbitrary but yet wide ana TO De
exercised for any re9s3p when u ssSms an ~ D ns
fe IN NAV he founded on defects in the indictment or
eXrnsc natter hut in the former case only where the
Indictment Is most clearly and obviously had Where
The questions arise extnsc facts the rgd rule does
not prevail.


Many Of the points Of the defendants must be over
ruled II there has been violation or evasion OF the
provisions Of the charter and IL is duly averred, the
defendants cannot escape either the plea that theirs
was legislative act or that it involved the exercise
Of discretion In the performance of their duty Where
an act s plainly forbidden and penalty attached 1t s
ide 70 talk Of discretion. municipal corporation does
not differ from other corporations IN respect
IN the power OF the courts It, and it's


members are subject to legal correction both civy and
ermnaly SO as the objection that the charter con-
tanned only O negation Of power and not command
On this the defendants might well be RENTED TO their
demurrer. There is no doubt that the members of
Common Council indictable for frauduently exceed
ing their jurisdiction.


OF the two serious points in the case, the first is
tnsc that arising out Of the charges Of the learned Re
eorder TO the Grand jury the second the face OF
the Indictment and goes 10 the root Of the inquiry,
whether an obstruction, within the meaning Of the
charter is averred consequentlywhether an offence
has been committed. Up to certain point the ques-
tions can be discussed together


RECORDER HACKETTs CHARGES.


Examining the Recorders charges to the Grand Jury,
Judge Barrett finds that they Of three kinds First
special as to the law second general as to the right Of
the Grand Jury call accused officials for expana-
tom and thrd the special charge OF May o. 1878. As
TO the first the Recorder treated the words ODsuctous
and "encroachments used in the charter, r their
ordinary rather than their legal sense his argument n
strnctions and his conclusion involves the view that
permission to keep any newsstand Is msdemeanOr
though natural error In the sense taken by the Re-
cOrder no ash-barrel pail Do& or can Ps
meant distractions and encrOachments as legally dc
fined, aud not every slight interference with t9e nig9,
power regulate traffic and the use OF the streets and
sidewalks for signs awnings, horse-Ioughs, etc,
clearly not within the purpose Of the prohibition.


section 1l9 continues previous ordinances one of
ing and granting OF snOw or stanos FOR the sale
showcases and all stands the sale newspapers
newsstand is not therefore necessarily a nuisance
within the meaning Of the charter, though II may be-


All that ia chargedis the grant of permission to
John Butler 70 keep stand for the sale OF newspapers,
etc" This authorized nothing except what is eX-
pressly contemplated by the law If John Butler chose
under Il to what in fact obstruction, the
responsibility rested with nim aud he could not shield
himself under the resolution


charges Judge Barrett holds that the Recorders charge
that the Grand Jurors had right TO call before them
indicted officials was clearly erroneous ~ rs uusu 70
examine accused person, and II IS not his right


1rys 92y is to seek the truth and act omit On pTin-
eple the jurors should not be confined TO witnesses
brought by the prosecutor but should have the
privilege Of obtaining additional light from others The
opposite rule once prevailed ID EglanG Put Jugge baI
Nities m SIoyy t6af fbe old ue is utterly exploded
and that the present rule is that the duty Of grand jurors
Is 10 seek truth from every source and not 10 find III
dctment unless after such examination, they nd occa-


Passing to the charge Of May 1873 in which the Re
eorder told the Grand Jury: -" If they" Nhe Alder
SUsSS- @epj e are tried and found guilty, viii give
them every day aud every hour which the law
branch OF the motion is delicate and somewhat
embarrassing, and he wishes It could have been dis
Citty to show the duty OF judge 10 charge not only
as to general law, but as TO local objects
entitled to notice. and from Bishops treatise somewhat
10 the same effect In practice, however, the charges
are general without reference TO any particular case
since the evidence Is taken IL secret Ihere are say
Judge Barrett certain fundamental rules which should
lead TO just conclusion one OF these rs that the
I'm the performance OF their duties To illustrator So far
as public prosecutor Is concerned 1t Is well settled
that while he IA to assist and advise he s not otherwise
infuen direct them IN respect OF their hndngs"
attempt to influence the Grand Jury In their decision
upon the effect Of the evidence, is an unustabe utter
one Of the Grand Jury request the opinion Of the pub
lc prosecutor the prOprety OF finding bill But
1tmaoDs m ou' un6p me 6ieet" Under these a1thor
ties" says Judge Barrett It cannot for moment be
been addressed to the Grand Jury by the DstuctAtOr
ney the Court would not stop 70 inquire as TO it's posi-
ble probable effect, but would at once quash the III


Refr being subjected TO the reflection cast by an in
detment accused person Is entitled to the impartial
consideration OF an uDpreudiced Grand jury, and the
evidence before the jurors must be regularly sworn cst
monv otherwise the indictment will be quasned After
citing various authorities, Judge Barrett says Inc
guards the right accused person by securing to
him mpartaitY and freedom from influence on the part
of the Grand Jurors, aud by carefully scutnzing the
regularity Of their proceedings, far as 70 see that
they are conducted according to the forms which
the law has provided. Can 1t DO said
that the Grand Jury was Influenced by the
language quoted that II approached the consdera
tOu Of the evidence presented IN the free
and Impartial spirit which the law eOntemplaes II Is
barely possible but certainly II is highly improbable
especially affidavit from any Of It's members deny
inc tie influence has been submitted. 1t was CON
eeded that similar language addressed to petit jury
would Decesstate a new trial = Where, In fact
the Grand Jury is instructed that vote given for
an object not itself unlawful Is an offence )
that the bedy duty il Is diligently to inquire has
no right 20 seek any explanation OF light from accused
public officers and finally when that body Is addressed
IN the language which has been quoted II would be con-
tray the genius Of our institutions ana suDYerYe OF
the due administration Of criminal justice 70 proceed
upon such a foundation as an indictment thus pro-
cured"


The qusshng Of the indictment this ground can be
remeded by new indictment. But on the other
ground Judge Barrett holds the Indictment fatally de-
tectiye. newsstand is not necessarily an obstruction
within the meaning Of the statute and the facts stated
iD the indictment do not show how 10 Is nuisance, ana
IL Is not merely 10 set up the words OF the
statute. On both grounds, therefore, he quashes the