Year: 1872

70 appear before the Grand Jury. and in reference
Attorney to appoint substitute. II they could
transPose the meaning OF section 70 10 the effect
INA. no SthsI person man the District Attorney
were equally we'll authorized to draw the inference
nom the latter part OF The same section that any
and stated times He referred also to sections SO
ana 49, aud with reference TO the intmation OF the
other side that he was liable lor mlsdemeanor by
reason OF his cognizance OF the proceedings OF the
Grand Jury, that idea must be dispelled on reading
section 40. He denied that he advised the Crane
jury even. Tor he had advised the District Attorney
TO recall the witnesses. He was present al no con-
suitatJons with them, as appeared ~ ms am
davit, other than the open transactions he
had had with them under his Instructions
he referred TO the opinion OF one OF the hrst Aitol
ney Generals OF the United States lin vol o.
Opinions, p. 40, as wei as 10 Judge WILSON'S opn-
ion in his lecture on Common Law, =. oCl, IL Doth
OF which IL was held that the Grand Jury bad the
one OF MI. Bisnop's notes the language used BY
Chitty was repeated, anu the common law WIN
reference to the presence OF the DISTRICT Ait9rney
planned and by II indictments Tor hlgh treason or
in any case other than where there was private
prosecutor, counsel might be present with the
Grand Jury and cross examine their witnesses,
any ordinary counsel or barrister having the same
privilege, and the same view was carried ont IN
The cause OF Larrup The State, in which the cir
cnmstanCes bore strong analogy to the question
mere raised they having examined mine w witnesses &c;'
ment OF the District Attorney. Several other
cases and judgments were cited to support
District Attorney could appear before the
Grand Jury aud explain the Indictment &c.
oi,lcer had the right to retain any counsel he liked
TO assist him in the trial. ana although the same
objection had frequently been taken ON previous
occasions IL had in almost every instance been


Counsel for the defence denied that this was go,
and SAID that in the Mcfarland case great trouble
arose TO the District Attorney by reason OF his con-
duct in appointing some one else to prosecute the
case.


Mr.. Peckham continued his argument, AMI asked
where the legal difference was in the appearance
OF one or the other before the Grand Jury.


Opposing counsel maintained that in cases where
the District Attorney himself was unable to attend
before the jury it was for the Court to appoint his
substitute and tnat he had no power to act in the
matter himself


Mr.. Peckham said it was matter Of absolute
necessity that some one should appear before the
Grand Jury to explain all the circumstances in
connection with difficult and intricate causes,
otherwise the jury would never be able 10 arrive
at Just conclusion; they would be in doubt about
any one appointed by the District Attorney TO
make such explanation to them was equally as
the name Of John Brown, which had been intro
duced, and referred to by counsel on the other
slde az


"A SKUNK UPON THE FENCE,


he denied that their nsinuations with regard 10 it
were either correct or just and SO far as his own
cee0ings OF the Grand jury closed when he left
their room and requested them 20 answer TO the
esse c was 5 thay the names Of @e the Witnesses @
were not set forth by the District Attorney
and therefore the only real points Which Which TINS TINS
this jury was incompetent from the fact OF q
stranger coming before them. 1t appeared TO him
Jury and the administration Of justice larce
Assuming, even supposing, his presence had been
an irrcguarty that did not alter the facts Of their
inquiring out all that they had done and acting
independently afterwards, which fact shows that
they desired to act properly. He submitted there
fore, that nothing improper had occurred; that
whatever there
was cured entirely by the District Attorneys hav
ing advised the Grand Jury to ignore any previous
Investigate it entirely by themselves


Counsel for the defence cited several leading
cases In an endeavOr to prove that the power was
vested In the Court to qnash the indictment.


Mr.. Tremain addressed himself to the principal
question. and said the motion to quash the indic.
ment go far as it related to exclusive acts, sought
to be based upon three propositions: first, that
the proceedings before the Grand Jury were illegal
and irregular; second that this indictment was
tainted by this irreaularity as fruit OF it, and
third, that this irregularity was OF itself, upon
the papers before the Court, sufficient ground to
make It the duty OF the Court to grant motion to
quash the Indictment. These three propositions
must all be maintained anlrmatively on the part Of
this was merely an rregularity, but the whole OF
the points must be established before the Court
could be justified in declaring such to be the case;
MIR. Peckham, a sworn attorney OF this and OF all
the Courts OF this State, at the request Of the
highest law ofiicer with the concurrence and joint
county, appeared before the Grand jury
without any objection being raised, and by
proceeded to examine the witnesses on the part Of
the government, explaining the nature OF the In
dictment, and leaving the matter afterwards with
the Grand Jury to decide. This was the slender
foundation upon which this high surerstI ucture Of
aspersions, accusations aad imputations OF mo-
tivcs was raised which had occupied the at
tenton OF that Court for the whole OF one day. 1t
was on this slender ground that the prosecution
had been abused, and all connected with IT, in q
manner unparalleled in his experience One day
had been occupied in begging the highest Court OF
original Jurisdiction in criminal Courts to dismiss
an indictment that had been found by the Grand
Jury OF the county for an offence involving the loss
OF millions OF dollars, according to the accusation
made by the Grand jury taken unlawfHy and
county OF New York, and the limit to these express
sons and to this so-called argument seemed to
rest entirely upon the strength and the persist
ency Of the counsel Tor the defendant. lie was
unwilling to suppose for moment that the


FOUL IMPUrATIoNs


that had been made upon the Grand Jury and the
Attorney General, an hOnOred member Of the pro-
lesson, could have received the approval OF the
Court, or that His Honor's silence could he at
tributed to any other cause than q reluctance to
interfere when the widest latitude seemed in
sufficient for the counsel. The consequence was
that If that were the law at Rome they must DO at
Rome as the Romans do, and II that Court should
be converted into an arena for the exhibition OF
Rladitorial c0mbats or into bear den the respon-
sibilty would not rest upon those who were depre-
eating it. In the first place, when the Assistant
District Attorney, after several unsuccessful efforts
to arragn the defendant in the simple discharge
OF his duty, moved that the defendant should be
arraigned, he was told that the counsel for the
government had this indictment upon the brain :,
that they were so eager to get at the defendant
that they were blinded to even the sanctty of
honesty. They had been told that Mr. Peckham
had been guilty OF violation OF the
statnte OF the State and ought to be
indicted. They had been told that the Grand jury
In order to cover up their criminal conduct had
sought cOncealment under the name OF "John
Brown" they had heard an asperson thrown
upon Judge OF the Supreme Court, because he
had attempted to arrest guilty man ''upon the
sn-GA
Gcneral.n Improper motives OF political hostility
had been imputed to the gentleman who appeared
before the Grand Jury. He took the OCCASION
therefore, 10 protest against such conduct and lie
should not follow, at least just now. this example
but he desired the counsel to understand that they
recognized no superiors at that bar and no school.
masters. And when the gentleman who arragned
the counsel for the government asked after weeks
OF delay and days occupied in dtlatory motions, to
simply arraign the defendant, he could not see the
force Of criticism upon them for endeavorng
to discharge their duty What could they do