Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1876-02-19
GRANTS FRIEND.
His Case, Charged as he is with being O
Whisky Thief, about TO be Given
TO the Jury.
Counsel on Both Sides Preparing their
Closing Arguments The PrOseeu-
tlOn 10 Speak First.
Circumstantial Evidence the Basis Of the
PrOsecutiOn-A Chance for the ES-
cape Of the Accused.

cape OF the Accused.
Sr. LOUIS, February IS.-Upon the
conclusion Of the session Of the colrI
last evening the district-attorney an
nOuncei that he would have some re.
buttsl evidence to offer this morning
upon the opening.
To day George GIvieG, the s,..refsrv
Of the board Of police Commissioners
was cailf'. for the putpose Of showing
t''e IecOId Of MsgilI, the letter carrier,
who testified to Telutning the letters to
Joyce. the witness did not answer, and
the district attorney Immediately an-
nou0ced that the government would put
IN no rebuttal testimony. The case was
then declared closed SO fer Sc evidence
was cOnce ned.
Judge Dillon ssked IL the counsel had
arranged in what manner the closiag
arguments should be made. Judge s3or-
ter arose and ssid tbs defense had in-
tended To raise question of law looking
ID the direction Of verdict, and asked
permission to address the count It was
granted, and Judge Porter spoke st con-
siderable length giving the grounds on
! l.,
this stage Of the trial, q verdict of &C.
quittal. TIE right Of trial hg Jury lie
! neld to be right eU nslteed by the con-
stitu.iOn, and one to be upheld with
all its force and sll its sanction. In this
case, SAID Judge Porter, upon the cndis-
| puted facts, We submit tEat there is no
question but FOX the court to acquit the
defendant. Toe evidence was then
| passed in review very carefully and
/ slowly, and after the Tevie " Judge Pcr-
ter said: ave now ask for the acqqttaI
! O' the defendant az the hands OF the
! court.f
/ After brief pause the court asked the
defense if they were prepared to present
authorities.
Judge PorterrepIied in the affirmative,
and proceeded TO read from books vari-
Gus cases which he claimed were paral-
lei on this point of law to the one under
/ consideration.
Colonel Broadhead, Ia reply to Judge
| Porter, said that IN order to sustain the
motion Of the defense, the court must
say there Is no testimony, either direct
| or indirect, by which the jury might be
| I'D to believe in the defeDdant's guilt:
He cited the facts in the history Of the
case; the mailing Of the letter by Joyce
| to BsocOck containing five hundred DOL
| lsrsi the corresponding with one OF the
! ro1spirstOrs, after he WAS indicted,
tnrough thirt party; the giving of val
liable Information, at the same time he
1 was protesting against the raids; the
sending Of the "Sylph" dispatch, mott.
| flying the c0nspirators here Of the aban-
| donment OF raid before the agents,
who had been detailed TO make the raid,
had been apprised Of the fact; were
strongly presumptive in character that
they must go TO the jury for decision.
Where there Ers disputed issues, il is the
province OF the jury to determine.
Toe court TOOK the matter under ad-
visement.
AFTERNOON SESSION.
Ga rs8ssembling in the afternoon
Judge Dillon delivered the following de-
cision. The testimony on both sides
being closed, the defendants counsel
moved the court for a peremptCry dirac-
tio1 10 the jury to scquit the detendAn
Tine case which the government
seeks to make against defendant is one
which largely, perhaps exclusively, de-
Eends on chcumstsntial evidence,
which il claims shows that defendant
had criminal knowledge OF the con-
spiTacy to deftaud the revenue in s..
Louis, and tnst he participated in that
conspiracy. The government hasEOlght
to lmplicate him mainly by the te5li-
mODy Of Everest as TO the mailing of
letter under circumstances which the
cOuosel for the government maintain
would authorize the jury-nOt standing
alone, but in connection with the other
facts in the evidence-tO infer that 1t
contained five e-hundrei-dollar bill, and
that it was sent to and received by de-
fendaut for guilty purposes; and by Ger.
tain telegrepbic dispatches to and from
the defendant. The present motion in
wolves question ss to the relative pow
ers and functions OF the court and jury,
which is Of great importance. Undoubt-
edly the court is judge of the law in
criminal as well as in civil csses,
and the jury are bound to receive
aud spply the law as expounde1 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 known
to tle practice il Federal courts. l. is
equivalent, says the supreme court OF
the United States, to demurrer to the
evidence; il answers the came purpose,
and should be tested by tbs same rules.
A demurrer to the evidence admits not
only the facts therein stated, but also
every conclusion which q jury might
fairly or reasonably infer therefrom. In
deciding on the present motion, 1t must
be assumed that 8ll evidsuce in the case
is true, AID that the witnesses are all
cre1ited; for, il there are questions re-
lsting to the credibiiity Of witnesses, or
on tie proper deductions to bs drawn
from the evidence, these are qusstIODs
not for the court, Dut3for the jury, ueder
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 a manner Ii
might be difficult to reconcile with the
views above expressed, The principles
which must guSTd US have been set
tied by the supreme court Of the United
States, whose judgm ents have in this
cOurC the force Of authority. The doc
tTine of the supreme court Of the United
States is well shown in Hickman versus
Jones. Wallace, 1917. This was case Of
malicious prosecution In which the court
peremptOriiy ins rGcted the jury TO acquit
Two OF the defendant In holding this to
have been erroneous under the cirCum-
slauceP, the supreme court of the United
States says: There was some evidence
against both OF them; whether Il
verdict of gully was q 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 10 discretion blt to obey the
direction of the court. When there is
no evidsuce, or such defect in il that
the law will not permit verdict f,r
the plaintiff to be given, such sn instruc-
tion may be properly demanded, and it
is the duty OF the court ID give 1t; to re-
r-s3 is an error. Ia this C. Sc the evil
dence was received withouG objection,
and was before the jury; it tended TO
maintain the part OF the plaintiff, the
issue which they were TO try, whethCr
weak or strong. Ii was thea right to
pass on IL; j. was not proper for the
court b wre5t this part OF this case mora
than any other from the exercise OF
their judgment The instruction given
overlooked the line which sepa-
Ta.es Two separate spheres OF duty;
Though cOueiative they are distinc', and
1t is important to the right sdminislra-
ton ot justice that they should be kept
60. II Il ga much within the proVinpa