Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1871-02-10

OF counsel for respondent. suggested the
propriety of suspending further reading of
the petitions. writs and returns. Here
follows a long argument by counsel on
both sides as to the admlsslblhty OF the
returns made to the writs by McAllister as
legal returns. The Chief Justice decided
that as to the purpose of the writ, the
Chief Justice had acted upon it as legal,
and it would so be regarded. The counsel
for the respondent insisted that they
would not admit such as having been le-
gall
William Larkin, the witness previously
examined, being recalled on part of Man
ayers, testified as follows
am Clerk of the District Court of the
Cape Fear District of North Carolina
Several papers we're handed witness. This
paper is petition of Josiah Turner, Jr.,
for writ of hdbeaS corpus; this next paper
is the writ issued upon such petition by
Judge Brooks. This other paper is the
answer of George W. Kirk to that writ. I
have the order of Judge Brooks discharg-
ing Josiah Turner, Jr. l. was acting as
clerk of the Cape Fear District Court, at
Salisbury, last August, and they came into
my possession at the sitting Of the court,
when these parties were discharged. They
have been in my possession ever since, in
my Office.
Mr.. Merrimon proposed TO have the pa
pers read.
Mr.. McCorkle objected, unless the sig
nature of Judge Brooke, purporting to be
signed to these writs, be proved. Because,
as the Court, sitting at Chambers is not q
Court of Record, the papers cannot be en-
tertained unless the handwritings Of the
parties are all shown. Counsel for both
sides discussed the admissability of this
evidence, when the Chief Justice decided
it admissible.
Mr. Smith argued against the admission
Of the evidence, and made citations from
the trial of President Johnson, which, he
insisted, bore upon the point and sus-
tanned him In his position. After further
argument, the examination of Mr.. Larkins
proceeded.
By Mr.. Merrimon State whether you
attended Judge Brooks, and if SO, what
you did
Answer l attended st the session of the
Court for the hearing of these cases at
Salisbury, and was directed by Judge
Brooks to make such record as was neees-
sary on that occasion. l have the record
here with me now.
The Clerk then read petition of Josiah
Turner, IT,, the affidavit of J. Ell. Moore.
and the return of Kirk to the wrif.
Mr.. Boyden That is sworn to before
whom ?
The Clerk There is no signature
L
in =?
Chief Jnstice The presiding officer had
ruled il was admissible, under the euppo
sition that it was sworn to.
The clerk then read the minutes made
by the clerk of the court.
Mr.. Boyden objected to the paper unless
signed by the Judge
Mr. Larkins Examination resumed [
made the entry by his direction, read it to
his Honor, and it was corrected by him.
The words F'Of the prisoner" were inserted
by his direction.
The clerk then read the order of Judge
Brooks, releasing Josiah Turner, Jr.
Question by Mr.. McCorkle:
l ask whether your memorandum shows
that in the proceedings before Judge
Brooks. time was asked on the part Of
Colonel Kirk to produce evidence as to the
guilt of the petitioners
MIR. Graham objected to the question.
Messrs McCOrkle and Badger argued
that it was relevant.
The question WAS allowed to be put.
Mr. Larkins answered: l think that on
Thursday afternoon the counsel did ask
for an extension of time for reasons which
l do not nov remember, but think it re-
lated particularly to making their returns.
I do not remember that it referred to the
production of witnesses.
To the question by Mr.. McCorkle,
whether the council did not expressly re-
quest time to get witnesses to prove the
truth of Colonel Kinks return, witness
said, 81 do not remember that witnesses
were specially named. I remember that
great stress was put upon the fact that it
would be almost impossible to have the re-
turn prepared the next day.
Question by Mr. McCorkle Was not
time asked the first day until the next day
to make return
Answer Time was asked until next
day.
After further questions of the same ten
dency, the Chief Justice remarked that
the testimony had no relevancy.
Mr.. Merrimon: We now put in evidence
the certified copy of telegram from the
accused to the President of the United
States. referring to the action of Judge
Brooks.
The Clerk read the following:
STATE OF NORTH CAROLINA,
EXECUTIVE DEPARTMENT,
Raleigh, Aug. II, 1870.
10 the President of The United States {:
S1R-The Chief Justice of the Supreme
Court Of this State, sustained by his Asso'
ciate Justices, has decided that have a
right to declare q county in state of in
surrection, and to arrest and hold all sus-
pected persons in such county. This L
have done.
But the district Judge Brooks relying on
she fourteenth amendment and the act of
Congress OF 1867, page 1856, chap. %, has
issued writ of hdbedS corpus commanding
the officer, Kirk, to produce before HIM
the bodies of certain prisoners, detained
by my order.
T deny his right thus to interfere with
the local laws lin murder cases. hold
these persons under our State laws, and
unless the decision of our Supreme Court
Judges who have Jurisdiction of the whole
matter, and it is not known to Judge
Brooks in what manner or by what tribu-
nal the prisoners will be examined and
tried.
The officer will be directed to reply to
the writ that he held the prisoners under
my order, and that he refused to obey the
writ If the Marshal shall then call on
the posse conaitatuS, there may be conflict,
bnt if he should call first on the Federal
troops, it will be for you to say whether
the troops shall be used to take the pris-