Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-12-06


nv ind bic offence he shall forthwith order thH,h
custody 10 be discharged as to the lniorInaIlon
hen under inquiry. but if IN the opinion OF ele
ice such evidence is sufnelent 70 pus tie 1Seea1
s mon his trial for indctable offence or II the
violence given raise strong or pro6d6e presumption
4. the uit of such accused party. then such JUS
loo shall bv his warrant commit him. &c Isl
Criminal Practice and Pleading, Az
/ will now cite the opinion of the Federal Court,
n the celebrated trial of Aaron Burr:
To warrant a commitment. the proof is not re-
yuired which would be necessary 10 convict per
,on on the trial in chief; but the committing Magis
rate will require that probable cause pc shoWa
Probable cause Is a case made out by proof 1ufnsh-
inc good reason 10 believe that the crv1e alleged has
been committed by the person charged -. ,. vs.
Burr Seargeants COnSt. Law, AZ
have thus shown that by all the textbooks ana INC
decision of our Federal Judiciary that only pfoDa,
HE rause need be shown to bind the party. VIII
now ,,,.oceed to show what the statute of our own
STATE required of the Magistrate. before he could
hind over and that it has been repealed. read the
Act of 1917 in Caruthers and Nicholson: /
eWhen any person or persons, shall be apprehend-
cd fer anv criminal offence whatever and upon eX-
animation of the witnesses, both in behalf OF the |
State and prisoner it shall be the duty OF the Jus
ticc or Justices before whom said prisoner or pris-
oners are examined, if they beieye the prosecution
10 be frivolous or malicious, TO discharge the prs
oner or prisoners and give Judgment against the
prosecutor for the cost; but if said Justice or JUS
tces shall be of opinion that said defendant or de-
fendants is guilty of the offence then ne OF
they shall bind them over to court Act 1871, en-.
100. See I. n. and c.. page 429.
Now the opinion OF our Supreme Court In hend-
rick VS. Sypert. 10 Hum defines and CONSTITUTES tins
act. Sypert had sworn out warrant against Mend
rick for misdemeanor. kendrick was bound over
hy the Magistrate He afterwards sued Sypert Tor
yEaIicOus prosecution. and Sypert insisted that the
very fact of the Magistrates binding kendrck over
was primo tdcie evidence of probable cause, and
the Circuit Judge so held. but our Supreme Court
saw il was not that the Magistrate is not 20 try the
defendant but to determine whether the evidence is
sufficient to put HIM on trlal Detore the jury Areau
from 10 Hum. page 297:
Perhaps the conviction of defendant before a
. Justice of the Peace, in case IN which he had
Jurisdiction to try and render final judgment as III
\ ease under the small offence bill would be at
least ,,rina f1eie evidence of probable cause But
not so in case where his jurisdiction extended
merely to bind the defendant over to answer pie
charge in the proper tribunal. The proceeding IN
the latter case is properly only IN the nature Oh h
inouiry or accusation And the duty Of the Justice
in sllch case is not to try the defendant but Smp-
ly TO INQUIRE and determine upon an &c pG7te exam
nation whether the evidence against HIM Is sum,
cent to require that he shond be put upon his tra
hafore a Jury in the appropriate tribunal 1t can
nOt he regarded as in the nature of adjudication
of the question of the defendants guilt; and there
fore can have no such effect was imputed 10 by
the Circuit Judge '-Kendriek VS.. Sypert 10 Hum
297.
not tenabe even il there were nothing else but the
18th division of section 1870 for the direction OF
! examining courts; for the Supreme Court defines
what quantity of evidence and what quality OF guilt
is meant, by the use Of the term guilty IN connec-
ton with the examining magistrates. But insist as
before that YOU are to be governed by sections
! 1908 and 1904 Of the Code. and that If there be
probable cause TO believe the defendant guilty OF the
! offence you must commit or bail him. The SAID
/ sections are as follows:
nen fha hole ovid
the magistrate that no offence has been committed
or that there is no probable cause for charging the
/ defendant Herewith he shall be discharged.
1904 If it appear that an offence has been COM
mitted and there is probable cause to believe the
defendant guilty thereof he shall be committed to
! lai by an order in writing. &c.
These sections of the Code are in accordance with
the opinion Of the Supreme Court as to the the duty
! of examining magistrates and modify and repeal
the act Of 1917, requiring the magistrates 10 be
satisfied OF the gull of the defendant. thus being less
| favorable to defendants when charged
In conclusion upon this point think that the
| practice under the common law and the English
statutes the opinion of Federal Courts the Opln
ion of our Supreme Court, the plain language of
our Code. and the every dag practice OF our magIs-
tItes all colcusiVely show, that the positive guilt
of the party, as coPtended for by Mr.. Ewing, need
not be determined by this court, but that II there
/ be probable cause to believe him guilty, he must be
bound over for an investigation in higher tribunal
| will now proceed to examine and comment Oh
the facts. and endeavOr TO show theretrom, that
there is probable of guilt and that the deten
dant should be bound over therefor. And presume
there is no one in the sound OF my voice, who doubts
/ that Poindexter was killed, or doubts the person
who did it, or doubts upon hearing the facts, that
there is probable cause of guilt; but II the court
/ please if there be A doubt in your minds, mold II
10 be your duty as defend by the laws to bind the
! party over The doubts in the mind of a jury
( would all be in his favor; but in committing
/ court they are not.
/ If the court please having disposed of that
branch | propose to investigate to some extent the
facts in the case and to look at the origin of the
difficulty We sec Il grows out of unfortunate par
/ agraphs in two newspapers of tins city. on dell
cate question now being discussed throughout our
country. Each paper has its character and has TO
sustain that character by giving expression TO the
feelings OF the party of which 1t IS tie exponent
bit not at the sacrifice of truth. The press has
power the young tho old and the middle aged !;
! it is supposed to comfort and soften the man OF
/ wears and to scatter the gold dust of knowledge
over the budding intellecs of the rising generation
as Mr. Ewing said it exercises an influence hardly
short of the christian religion 1t is potent and pow
/ ertul to stir well as assuage the passions OF men,
! Then it is a newspaper controversy IN this city
tb2t is the cause of this unfortunate occurrence,
l. hci. resulted in the death of Mr. POindeXter We
4 see. that upon the 10th of November. 1882 there
were certain art,oies = hich appeared in the Aeos
of the city Of Nashville. edited by this defendant
Mr. POindexteP was associated as one OF t4e EIitoTs
! of the UNION AND AMERICAN and it is known to the
public that he presided in the editorial department
of that office He had right to hold that position,
let his character have been what It may, and he eN-
eFcsed but freeman's privilege when he sat upon
that TRIPOD a. the flower of his party, and where
| he made his mark higH gpop the Pantheon OF Ten
nessee In the exercise Of that prlYiiegs re reprints
an article penned by Mr.. Hall, or published in tFe
! naner of which he was the editor. in 1894 that
mosl delicate of all questions slavery question
that domestic ipstitutoa which seems to be inter-
woven with our fate-aBd Is sensitive plant which
now trembles at the touch 1t Is aqu6silHR on which
! we of the South should be nnited-and unless We
! are our sweet home may be blighted-ouE lovely
South, the land of the Cypress and Myrtle
Where life OF In golden sands,
And woman never fTovLs,
NAV be basted-foP the divisions OF friends are the
! oppoFtunities of foes" This familiar truth Is Illus
trated by the tragcal fate of the Royal House of
Plantagenet. in which struggle the White Rose OF
! York was one day in the ascendant, and the next
he RED Rose of Lancaster, until by warning among
themselves, tie royal scepter departed rom thelT
bopse forever RnQ te last or their noble line fell
on Bosworth Reld fighting y ID kcaFeTy worth OF
he lion heart of his greatest Of ancestors. We, TOO
uTless united may find Bosworth field and witt II
disboaoPed grave dag by Northern ta9aticsm THIS
say by way of adMoHlt9F. ~ ny oMclai PoSitioh
know no politics, ] prosecute those % my BuilIcql
eomplexion with the sdul9 Yig0P do those opposed.
One of the last and most ably dcf1Hded TRIALS IN WHICH
| participated, as an attorney for thg STATE, was
against man of prominence and wealth IN the party
/ 4 4 /
/ OCCASION as on others, wish and intend to speak
the plain trat, :, ! know it. without fear or favor
Well when this aIIilie vas written 1t has been
explained that Mr.. Hall was absent, End how easy
if would have been for him 10 have replied 90 Mr..
poiadeyter Il was absent whenit was written lie
had said SO t. others, and why not say so to Mr..
Poindextcr: HAD he go explained you cannot doubt
the noble character Of thar gsn OF galantry around
whose character there clusters IS p&Py attributes
OF pGtenazs and forgiveness as eyer gr9eed the cha
racter Of any mana man OF peace unless his cha
/ rSateF was Touched; 9aa who regarded has henor
with the same sapctity that woman does her chas-
titv and ought and would protect it with the same
fidelity. In that he right, and this court must
saw so: when man ceases 10 respect ms honor,
he gives up character, and had better give up life
trust to God honor is not az discount In this good
and gallant State. hope that ehya!ry Is not below
/ par and coWardice at premium in Tennessee Mr.
PondexteI, It has been said by those who knew him
/ longest and best would EGt take the advantage OF
! any msH, lie was incapable Of ttat; he had rather
have given II 70 his adversary. That Was ms lqea
of chivalry according 70 the proof. II W? had more
of il there would be less hiDadshed, and hghtlng
would he done done at all, upon equal terms men
would not be shot down in the street with double
barreled shot guns. The one is dictated by spirit
OF tEe gallantry and love of fairness and Justice;
the ofbe 1y spirit ofcowardice and assassination.
! 80, the other If Mr..