The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1876-02-19
BABC0CK'S TRIAL
The Testimony Closed.
Babcock's Counsel Ask for
Instructions to Acquit.
Resisted by the Prosecution
Motion Overrulea.
Judge Dillon's Decision.
Judge Dillon's Decision.
The Defense Object to the
Case Being Given to
the Jury.
But the Court Decides that
It Must 60 Forward.

conclusion oil the SESSION vi SouAs i"'s
evening, the District Attorney announced
that he would have some rebuttal evil
dence to offer this morning.
Upon the opening to-day, George
Gaven, the Secretary of the Board OF
Police Commissioners, was called tor the
purpose of showing the record OF Maglll,
the letter-carrier, who testified to return
ing two letters to Joyce.
The witness did not answer, and this
morning the District Attorney an
nounced that he would putin no rebuttai
The case was then declared closed so
far as evidence was concerned and Judge
Dillon asked if the counsel had arranged
IN what manner the closing arguments
should be made.
Judge Porter arose and said the de.
fense had intended to raise question OF
law looking to the direction OF verdict
and asked permission to address
the court. 1t was granted.
Judge Porter spoke at consld-
cradle length giving the
grounds on which he asked
the court to direct at this stage of the
tria, verdict of acquittal. The right
of trial by jury, he held to be right
guaranteed by the constitution and one
to be upheld with all its force and all Its
sanction in this case, said Judge Porter,
unpon the undisputed facts we submit
there is no question but for the Court to
acouit the defendant. The evidence was
then passed in, reviewed very carefully
and slowly and vfter their review Judge
Porter said, we now ask
for the acouittal of the defendant at the
hands of tie court. After a brief pause
the court asked the defense if they were
prepared to present authorizes. Judge
Porter replied in the affirmative and pro-
ceeded to read from the books various
cases, which he claimed were parallel IN
point of law to the one under considera-
tlen.
Col. Broadhead's Reply TO Judge
Porter.
Col. Broadhead, in reply to Judge For
ter. said that IN order 10 sustain the mo-
,ion of the defense the Court must say
there is no testimony, either direct or in
direct, by which the jury might be led to
b leve IN the defendants guilt. He cited
facts in the history of the case: the mail
inc of the letter by Joyce to Babcock
containing 500, the correspondence
with one of the conspirators alter he was
indicted through u third party, the CIV
! ing of valuable information at the same
time he was protesting against the raids,
sending the 'Sylph' dispatch notifying
consnlrators here of the abandonment
of raid before the agents who had been
ordered to make raid had been app-ised
of the fact, were also strangely presump-
tive in character that they mast go to
the iurv for decision. Where there are
disputed issues it is the province OF the
Jury to determine. The court took the
matter under advisement and on reas-
semblng in the afternoon
Jud~e Dillon Delivered the Follow
ing Decision.
The testimony on both sides being
closed, the defendants counsel moved
the Court for peremptory direction to
the Jury to acquit the defendant. The
case which the Government seeks to
make against the defendant is one which
largely. perhaps exclusively, depends
mo, circumstantial evidence. which II
cIaims shows that the defendant had
criminal knowledge of the conspiracy TO
! deirsud the revenues in st Louis, and
that he participated in that conspiracy
/ The Government has sought to impllcate
him mainly by the testimony of Everest
as to the mailing of letters under circum'
stances which the counsel for the Gov
eminent maintain would su .horze the
iurv. not standing alone, but IN
/ conclusion with the other lacl'
| in the evidence, to inter tha'
il contained 500 and that it wa:
sent to and received by the defendant
for guilty purposes and by certain te!e
graphic dispatches to and from the de-
tendant. The present motion involves
question as to the relative powers ano
functions of the court and jury, which IL
of great importance. Undoubtedly the
court is Judge of law III criminal as wei
as civil cases and the jury IL bound to re-
ceive and apply the Law as e1poundee
by the court in the ole class OF cases
the same as in the other. a motion o
the character Of tie one here made Is
Z
unknown to practice in the Fedora
courts. 1t is equivalent. says the Su
preme Court of the United States, to
demurrer to the evidence 1t answers
the same purpose, and should be testec
bv the same rules. A demurrer to tn
evidence admits, not only the facts there
in stated. but also every concession
which Jury might fairly or reasonabl,
infer therefrom. In deciding on tn
present motion, it must be assumed tbs
all the evidence in the case i. true, an'
that the witnesses are all credible, 70
if there are questions relating to tn
cred,bility of witnesses, or upon tn
proper deductions to be draw
rom the evidence, ines
are questions not for the court out 10
the jury, under the advice ana uirectlo e
of the court. The counsel here relerre
to cases in which some courts may nav
;,..,sa-ad with the proyince Of the lur