Year: 1877

! ness case.


What were the facts, in brief, in


that case? Nancy Henness, mother


of an iIlegitimate child, an infant,


was seen upon the road with her


child near Leesburg Not long af-


terward, and not far from the scene,
she was seen without it. Search be-
ing made, the infant was found in q


branch, dead, partly immersed in the


water, and in such a position and
with such surroundings as to show


conclusively that the child had been
placed there with the intention to
cause its death, and that death had
resulted. When questioned at the
time, the mother gave evasive and
fictitious answers. The infants
death might have been produced by
droasning. It might have been pro
duced by eapo8are. In either case,
if put there with deliberate and pre-
meditated intent to take It's life, it
was murder. And anybody having
the case in hand, who had common
sense, combined with three grains of
legal knowledge, would have SO
framed the indictment as to have in
cluded both hypothesis, But it was
not done, and therefore, in great
part, the prosecution failed.


But Mr.. D. says, that the grand
Jury did not want to indict for any
thing but drowning, and that he had
no option in the matter. This is the
merest quibble. He was by law the
legal adviser Of the grand jury, and
the grand jury were charged by the
Court to take his advice. He was
present, if he was in the discharge
of his duty, in the grand jury room,
and heard the testimony before it. |
It is a part Of his official duty to
draw up theindictments. Does any
body suppose, that if he had advised
the grand jury, as he should have
done, that it would be well to have
another count in the Indictment.
setting forth a charge of death by
exposure, by the act of Nancy Hen
ness, the grand jury would not have
concurred


Mr.. D. tells us that we objected to
the 'form" of the indictment, and
that it's ''form' was not objected to
on the trial. Another quibble. As
we have said, we are not a lawyer,
and may have failed in legal phrase
ology, but we will vouch for it that
every reader knew very well what
was meant. We went on to say that
"anotber count" should have been in
the indictment.


But, says that learned Theban,
Capt. Gardner, the count we sug-
gested would not have been good, |
because a setting forth that death
had resulted in some other way
would not have set forth a crime,
under Ohio law. We spoke general
Iy. But would it have been impos-
sible to have set forth in a count of
the Indictment, the facts in regard f.
to the exposure, and to have charged |
therein that by means Of such expos
ure the infant was with deliberation |
and premeditation done to death


It may be that would not have
been the charge Of any crime under
the laws of Ohio. Not being a law
yer, we don't say it would have been:
but if it would not, then there have
been too many Mr.. Dumenils in the
Ohio Legislature.


Mr.. D. and his defender, Capt .
Gardner, make much of the fact that
no indictments of Mr.. D. have been
quashed. We are informed that
since the adoption Of the criminal
code, which did away with common
law technicaIties, indictments are
very easily drawn as to form, and
that so little is gained by taking ad-
vantage of a defective Indictment T.
that it is seldom done. We venture
to say that if the old strictness in
criminal practice had obtained since
Mr.. D. he's been prosecutor, there
would have been many jail deliveries,
more or less. general, the result Of his !
detective indictments. But the
criminal code doesn't help the sub
stance. The use of the words, 'sform /
of the Indictment, in our former al |
ticIe, were not critically accurate,
from a legal standpoint, but what
followed showed what we meant, .
and all knew what we meant.


No wonder that the counsel of
Nancy Henuess took no exceptions |
to the form of the indictment" If
they had done so, it might have re
suited in another Indictment, making
both charges, or the charge in both
ways. They were shrewd enough to
see that they had a much better
chance for their client to go to trial
as the Indictment was, and thus
make the Stat eprove death by drown
ing, OF let the accused go free.


But besides the indictment the
conduct of the Henness case on the
part of the State was pitiably weak.
/ No competent examination of the