Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1873-01-26
Decision Of the Judge Denying
Notion for COntinHaRee--The
Trial to Proceed.
The Story of Martha Upton, One
Of BOyd's Pensioners
4 Hard Case.

from the Government by erroneous pen
: sion claims, alleged 10 have been mad
. out by Boyd, while claim agent.
Yesterday was mostly consumed il
o the arguments of counsel on the admis
5, sibility of certain pension papers. Thre
% witnesses were examined. Mr.. Willard
Ofthe Pension Department of the Gov
. eminent, testified to the authenticity o
: the papers. Daniel Heiskell, of Sweet
Is water, testified to the handwriting il
N the papers. Alfred Caldwell, ESQ, 0
Knoxville, whose father had been pen
sion agent and who was familiar witt
q the mode Of doing business in the office
S testified to the method Of drawing mon
4 ey on pensions. The entire ground O
Ofiense and defense was debated anC
fought over with vigor, and every incl
{ contested by the counsel for thedefense
J, until the hour for adjournment.
The following is Judge Emmons's
/, opinion on both sides, denying the mo.
ton of counsel for defendant, for a con.
: tinuanee:
| His honor said that where there had
: been such lapse of time as DriH7a fdciu
to afford opportunity 10 prepare for trial,
three things IN all cases were necessary
10 be shown in order to continue q
criminal cause. That there was a de-
tense on the merits, that material wit
nesses were absent and that the defend
ant used due diligence to procure their
attendance. When act We eXertions had
not been made so a. 90 comply with the
last requisite facts which excused il
would satisfy the rule. Last evening
counsel were informed that as the afTi-
: davit then was, the existence of a de-
fense, and the absence of material wit
nesses sufficiently appeared. There was
no necessity for an amendment in that
regard, but as there was not word to
show why the witnesses were not here
in a case two years before the court,
there was nothing upon which we could
set.
There was q recommendation to
amend the paper by showing some rea-
son why preparation for trial had not
been made. A second postponement
was granted for this purpose. He had
listened anXiOusly to its reading as now
amended, and patiently to the impas-
| stoned and really impressive appeals of
| the learned counsel, but nowhere in
averment or argument had there ap-
| peared fact or suggestion having the
slightest tendency to show that there
had been any effort to procure witnesses.
1t does not appear that even a request
for their presence had been made, and
no subpoena has been issued and served. |
The only reference TO such a process is /
that two terms since, a part of the wit
nesSes acknowledged service for their
appearance. But this is wholly imma-
terial. 1t did not bind them TO do so,
and the affidavit cOnclusively shows not
only that the defendant did not expect
them at the term referred to, but was
himself absent. He had hed from ius-
tice in circumstances so extraordinar V
and so carefully planned as to enable
his bail, as he sweaTs be intended thew
should DO, to suggest his death upouthere- !
cord, with the intention Of still further /
defrauding the Government of the sums
in which they were bound for his ap- /
pearance. Where he was during his ab- |
sence, what communications be held or /
might have held with his witnesses,
whether they are friendly or hostile ana 4
would have come upon request, why he /
did not subpoena them, what reason he
has hereafter to expect them or had 4
that they would be here now, or even
that he expects them at all is not even
hiuted at in this extraordinary affidavit.
None of the manifold circumstances
which We can conjecture might have
given him reasonable ground to sup
pose he would have been prepared for
trial or showing at least plausible ex-
cuse why he omitted preparations and
could therefore ask a continuance are
given.
Upon what ground learned counsel
supposed the court could, without a
gross violation of law, continue this
cause We are unable to conceive. The
paper presented seems to have been
framed in the idea that there was no
duty OF diligence incumbent upon the
defendant. Its apparent argument
would seem to assume that the Govern
ment must not proceed until the conYe-
nience and even the caprices and des-
perate experiments of the defendant in
to defeat trial at all had ;
left him leisure TO attend to the ordinary
and lawful modes of meeting an accn-
satiOn in court. 1t presents but the bold.
unrelieved case of a defendant fleeing .
from justice after trial in one case. and
from twenty-five other similar indict- Z
Inents, and without detail of any kind /,
return day or two before the trial. and /,
an announcement that, for some wholly
reason, he is not ready for ,
trial-why, is not said. No frank. ex-
eusatOry explanation Of the years neg
iigence is made, but in an attitude of an
accused the high officials of the Gov
srnment and its counsel, the action of Z
grand jurors and prosecutions are de-
as oppressive. The number I
Df indictments is assumed per sc
% be evidence Of tyTannical pub 5
ic action and a continuance demand a
ID, not because the defendant in the S
peculiar circumstances attempts to mod i
~ and palate his exceptional conduct.
put because OF the character of the gov +
sInmental proceedings against him c
The paper j unprecedented, and was !,
suffered TO be read because in the rapid !,
~ Of its reading the court was in doubt
IS to It's real purpOrt. We think there
s much in il highly improper. Ia its '
elevant and legitimate ayerments, it I
ioes not contain facts constituting even :,
'lausible ground for continuing the q
'ause. Counsel have pronounced il the
Jon9esf affidavit they ever presented q
or similar purpose. IL is strong IN its G.
'athOS and the beautiful and touching a
manner IN which il describes the misery o
nd dependency Of an innocent man. p
leeiDg from the false accusations Of his
nemies, the OPP Iressive power of a great G
nd bad government aud uncomfortable Fl
nd unjust suspicious of friends. Did q
be facts which the same eloquent paDer =,
D fully comedies TO be true, sustain auy d,
lpreeiable relation to these affecting 81
ppeRls, we might in quite different con-
iderations, find some cause for a contin- b.
ance. - -
The condition Of public opinion is said n
D be SO against the defendant as 10 war .,
ant a continuance on that ground. -
here is nothing but the unsupported ~
fHdayit of the defendant to show this. "
uch collateral facts are never left to the
opinion Of a defendant
here are abundant reasons in this case 4,
'by we cannot act upon it alone. Such =,
D extraordinary fact must be sustained -
y the statement Of leading, responsible =,
Itizens who know public feeling. 1t :;
'ould be unseemly, IS il would be un- -
feeedented, for court to pronounce ~
ldlcially the citizens unfit, from ex- :.
Itement, to try the defendant upon his -
nsupported cath that he so believes. -
le has stated his belief in many mat :,
'rs IN this paper the court would be 3,
Ow 70 conclude he was not Ia his own ~
settlement aRd necessary prejudice. -
realty mistaken about. ~ ~
rom ihe Knoxville Press and Herald. 9ithl ~,
The case Of the United States Us. I'll