27 F. Cas. 604 | U.S. Circuit Court for the District of Michigan | 1854
Five reasons are placed on record, why the court should grant a new trial. The first four were not pressed in the argument, and are certainly not founded either in law or in the facts of the case. That the court erred in refusing parol testimony of that which was matter of record by law, and which was in the power of the defendant to produce, might well be abandoned, when well considered. That the verdict was against the evidence of the case, or without evidence.
But I do not yield my assent to the proposition that either of these counts are essentially defective. It is conceded that the prosecutor cannot, in the same count, charge different offenses in the alternative, as, for instance, that the defendant did this, or did that, because, in pronouncing judgment, there would be no certainty in the finding of the jury, and consequently no basis of record for the sentence of the court. But I am inclined to question the construction of the statute, which makes two offenses, where but one was evidently contemplated. The statute declares cutting, or procuring to be cut, one offense, i. e., cutting, on the principle that the procurer is the doer; aiding or assisting one offense, as he who aids is of identity with him who assists; and removing or procuring to be removed, another offense. A count for aiding or assisting, would certainly not be defective, because aiding is assisting, and assisting is aiding. And so, in contemplation of law, he who procures or causes the cutting, is of identity as to the offense with the actual cutter, as, by the subsequent language, the latter is an offender, under the appellation of “being employed in cutting.” But it is unnecessary to consume time on this particular exception, as the third count is. in the opinion of the court, entirely unexceptionable.
Motion to arrest overruled.
