The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1876-02-23
ALL IN.
CHEEK OF BABCoCK's COUNSEL
THEY MOVE AN ACoUITTAL.

GUMENT TO COME ON TO-DAY.
ST. LOUIS, Feb. lS-Upon the conclu-
ion of the session of the court last
Fening, the district attorney an
ounced that he would have some re-
uttal evidence to offer this morning
n opening TO day, George Gavin the secre-
sry of the beard OF police commissioners,
was called for the purpose OF showing the
record of MaGill, the letter carrier who tes-
tilted TO returniu z two letters TO Joyce. The
witness did not answer, and the district a.
government would put in no rebuttal testi-
mony. The case was then declared
closed so far as evidence was concerned.
Judge Dillon asked If the counsel had ar
ranged in what manner the closing argu-
ments should he made. Judge Porter arose
and said that he had intended TO raise a
question of law looking to the direction of
verdict, and asked permission to address the
court. It YVES granted. Judge Porter spoke
at considerable length, giving the grounds
on which ne asked the court TO direct, at this
sta Se of the trial, a verdics 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, upon the
undisputed facts, we submit that there is
NO QUESTION BUT FOR THE COURT TO AC-
QUIT
tie defendant. The evidence was then
passed in review very carefully ard slowly,
and after its review Judge Porter said: We
now ask for the acquitsl of the defendant at
the hands OF the court. After brief pause
the court asked the defense II they were pre-
pared to present authorities. Judge Porter
replied in the Affirmative and proceeded to
read from the books various cases W bicb
he claimed, were parallel In this point OF
law to the one under consideration. Col.
Broadhead, in reply to Judge Porter. said
In order TO sustain the motion of the de-
Tense, the court must say there is 40 testi-
mony, either direct or indirect, by which
the Jury might be lead to believe in the
defendants guilt. He cited the facts in the
history of the case. The mailing of a letter
by Joyce to Babcock containing $500, the
corresponding with one of the conspirators
alter he was indicted through third party
the giving of valuable information at the
same time, that he was prot estipg against
raids, the sending of the "Sylph" dispatch,
the notifying conspirstors here OF the aban
donment OF raid before the agents who had
been detailed to make that raid had been
apprised OF the fact were also
strongly presumptive in character
that they must go to the jury
for decision. Where there are disputed
issues it is the province OF the Jury to deter
mine. The court took the matter under sd-
visement, and on resssembling in the after
noon Judge Dillon delivered the following
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 aga INST the
defendant is one which largely, perhaps ex-
clusively, depends on circumstantial evil
dence, which, it claims, shows that the de
fendant had
CRIMINAL KNOWLEDGE OF THE CONSPIRACY
TO defraud the revenue in st. Louis. and that
he participated in that conspiracy. The
government has sought to implicate him
mainly by the testimony of Ever est as to the
mailing of letter under circumstances
which the counsel for the government main
tain would authorize the jury, not standing
alone but in connection with the other facs g
in evidence, to infer that it contained $500
bill, and that it was sent to and received by
the defendant for guilty purposes, and
by certain telegraph dispatches to and
from the defep dsnt. The present motion
involves question as to the relative powers
and functions of the court and jury, which
is of great Importance. Undoubtedly the
court is the judge of the law in criminal as
well as in civil cases, and the jury is bound |
to receive and apply the law as expouuded |
by the court in the one class OF cases the |
same as in the other. A motion of the |
character of the one here made is well |
known to the practice in the federal courts. |
1T Is equivalent" says the Supreme Court |
of the u nited a.es, ito demurrer to the /
evidence. 1t answers the same pur-
pose and should be tested by the same rules" |
A demurrer to the evidence admits not only |
the facts therein stated but also every con-
clusion which jury might fairly or reason
ably infer therefrom. In deciding upon the 4
present motion IL must be assumed that all 1
thu evidence in the case Is true, and that the /
witnesses are all credited. For If there are |
questions relating to the credibiIity of the |
witnesses or upon the proper deductions to be /
drawn from the evidence, these are questions,
not for the court, but for the jury under the
advice and direction OF the court. Counsel
have referred to cases In which some courts
may have interfered with the province of the |
jury in q manner which it might be difficult
to reconcile with the views above expressed.
The principles which must guard
Supreme Court of the United
States, whose judgements have in this court
the force of authority. The doctrine of the
Supreme Court OF the United States is well
shown in Hickman VS.. Jones, 8 Wallace,
1877. This was case of malicious prose-
cution, in which the court peremptorily
the jury te acquit two OF the de-
PENDANTS. In holding this to have been
ERRONEOUS, UNDER THE CIRCUMSTANCES,
the Supreme Court of the United States
says: "There was some evidence against
both of them. Whether it was sufficient to
warrant verdict Of guilty was a question
for the jury under the instruction of the
court. The learned judge mingled the duty
of the court and jury, leaving to the jury
no discretion but TO obey the directions of
the court. When there Is no evidence, or
such a deficit in it that the law
will not permit verdict for the plaintiff to
be given, such an instruction may be prop
arlr 10 let ho dr1fx7 Of bno
to give it. To refuse is an error. In this
case the evidence was received without OBJ
jection, and was before the Jury. 1t tended
to maintain the part OF the plaintiff. The
issue which they were 20 try, whether weak
Or strong, it was tneir right to
pass upon. 1t was not proper for
the court to wrest this part of the
case more than any other from the exercise
Of their judgment. The instruction given
overlooked the line which separates two