886 Slide – American State Trials 1918 Volume X Leo Frank Document

846 X. AMERICAN STATE TRIALS.

the charge be accurately specified, it is impossible for him to de
fend himself. In support of this indictment, evidence ss to either
ease might be brought forward.

If in the indictment he had been charged with publishing a book,
entitled “The Prospect Before Us,” he would have known with an
absolute certainty and demonstration (by the copy with which he had
been furnished), what was meant to be proved against him, and
what wae necessary for him to prove in his own vindication; as this
ia not the ease, and as he was not bound to know whether the pay
sages were taken from the book or a newspaper, containing ex-
tracta from it, in the publication of which he had no concern, and
for whieh he is nnder no responsibility, he ought to be sheltered by
law from this evidence, which is attempted to be introduced against
him. The second reason has made « great impression on my mind,
and yet retains its influence. I conceive, that one writing against
the President, containing fifty libellous passages, if published at
the same time, ean be but one act, and if there be but one net, there
can be but one prosecution; if the present indictment had men-
tioned the title of the book, and the very passages relied on as
parts of this book, the decision of this jury and this court whieh is
about to be pronounced in this case, might be pleaded in bar to
any subsequent indictment, for the same or any other passages in
the same book, It is no argument to say, that there will be no sub-
sequent prosecution; in times like these, it is impossible to predict
what may be attempted, and if such a prosecution were to take
place, I should not be more surprised than I am at present. If the
title of the book had been inserted in this indietment, and a subse-
guent indietment were to be brought forward, I know that the de-

fendant would plead in bar, that he had been formerly convicted or

formerly acquitted; and the production of the record alone would
protect him; but if the title of the book is not to be recited, the
record will not be conclusive, and a second prosecution may take
place. For the second indictment, compared with the present re
cord, will contain no internal evidence, that the traverser had heen
formerly tried for the same offense, but he must resort to oral testi-
mony, to prove that this book had been given in evidenee agninst him
at a former trial; and he might not be able to procure witnesses,
‘whose testimony would be anfficient to establish this point. These
are the reasons which induce me to think that this book onght vot
to be admitted to go in evidence to support the charges in the indict-
ment. This principle has a considerable operation in questions of a
Private property, In an action of debt, if a bond or writing be the
ground of the section; if there be the most minute variance between
the bond or writing stated in the declaration, and that which is ad-
duced in evidence in support of it, the party must suffer a nonsait.
If this precision and minute attention to accuracy be required in
actions of property between man and man, is it not infinitely more
important that the same principles should govern in criminal cases?
If the argument be good in one ease, it appears to be irresiatible and
ompipotent in the other.