State v. McVay ( 1926 )

HAHN, J.

Heard, on motion to strike out irrelevant matter in bill of particulars and for additional bill of particulars.

Defendants ask that the State specify what is meant or intended by the words “sound facilities for the same”

wherever that phrase appears in the bill of particulars.

At the hearing on the motion the State made no'objection to striking this phrase from the bill, and it is accordingly ordered that the words “or sound facilities for” be stricken from the bill in each and all counts in which they appear. It seems necessary, in connection therewith, to strike from the bill the comma follow"-ing the word “to” and just before the words “or sound facilities for” in the eleventh line of paragraph 3 (e) of the bill of particulars applying to the third count, and this comma shall accordingly be stricken from the bill.

Defendants also move to strike from the bill all statements regarding parts of the boiler which the State does not claim to have burst. I't seems probable, however, that the corrosion and condition of these parts may be relevant in connection with the condition of the apparatus as a whole and the boiler in particular. It may appear in evidence that some of' these parts were more readily visible than the boiler, or the portions thereof which burst, and possibly if parts so visible showed corrosion or weakness a prudent man would go over the apparatus as a whole to learn the extent of such corrosion, and failure to do so plight in itself, or in conjunction with other circumstances, constitute lack of due diligence. This request is therefore denied.

For State: Charles P. Sisson and Oscar L. Heltzen. For Defendants: Fitzgerald & Higgins, George H. Hurley and William H. Camfield.

Defendants’ motion to strike from the hill the statements relating to the ■alleged failure of Grant to report to the inspectors is also denied. A prudent and careful man might avail himself of the presumably disinterested expert advice to be had from an inspection, and failure to do so might in itself, or together with other circumstances, constitute lack of due diligence. In any case, it does not appear that the inclusion of the statements in question, or those relating to parts of the apparatus not burst, will injure defendants.

Defendants’ other requests to strike nut and for additional particulars are denied. The information as given by the bill appears sufficiently definite to inform the defendants of the facts which they are called upon to answer.