The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-02-19
Public Opinion Impugns His
Veracity.
THE DEFENCE SURPRISE THE COURT
Motion Made to Charge the Jury for
Acquittal.
A BRIEF AND EMPHATIC DENIAL.
Federal 0fiice-hOlderS in st. Louis LabOring TO
Block the Wheels Of Justice.
ST. LOUIS. Feb. is. Is1a.

ST LOUIS Feb Is, 1876.
The defence took the prosecution completely by sur
prise this morning. when ex-Judge Porter in long
and abored speech moved that the Court direct YER
dict of acqutal the ground of insufficient evidence
During his argument which strongly foreshadowed the
main points OF the summary yet to come three of the
Jurors quietly doing and the rest looked pro-
foundlY bored. This doubt owing to Mr. Por-
ters long pauses between every word and his odd
method Of lengthenng out every syllable like sus-
tanned note, SO that 1t requires little patience
keep the attention alive until the end of the sentence
Babcock. storrs the Krums, Williams and Campbell the
defendants father-inaw, all looked jubilant aud so
confident they of that the elder Krum,
worthy, amable old gentleman, already proposed to
celebrate the coming victory in glass OF champagne
with your correspondent Alas both the victory and
the champagne turned out to be delusions but the
element during the two hours of recess, which the
Judges had taken to write their decisions great
and there many who said that the rulings in
gard to the kilograms favorable to the accused
dered the granting OF the motion not at all impossible.
Carl Sohurzs organ, the Westlichs Post had openly
charged Judge Dillon with strong sympathy for the
Whiskey Ring on the ground of his charge
In the Mckee case, and this probably had
also something to do with the fact
that before the reassembng of the Court at two O'Clock
motion would be granted Judge Dillon, usually so i'm
perturbable, rather nervous and excited when he
began reading his decision which greatly disappointed
the defence, except in the passages that seemed to
forecast favorable and very cautious charge to the
jury upon the credblity to be attached to the creum
stantial evidence adduced by the prosecution
DEFENcE.
During the recess when Babcock to and returned
from luncheon, large crowd followed him. His arm
lie generally linked in that OF Porter Stors and the
scene reminds me strongly Of the recess scenes
during the Beecher trial Perfect silence regned during
the reading Of the decision, but it
the pent-up emotions Of the excited crowd that filed
the court found In loud buzz OF approba-
tion BabcOck, himself, seemed to take the decision
a terrible blow. His countenance, which wore
confident expression. fell and his hand trembled as he
put up his head to listen to its closing passages
THE PRocERDINes
Upon the conclusion OF the session OF the Court last
evening, District Attorney Dyer announced that ne
would have rebuttal evidence 10 offer this
ing Upon opening to-day, George Garvin the secre-
tary of the Board Of Police Commissioners was called
for the purpose of showing the record of Magll the
ter carrier, who testified TO returning two letters
10 Joyce. The witness did not answer and
the District Attorney Immediately announced
that the government would put In rebuttal test-
mony. The case was then declared closed, so far as
evidence was concerned.
Judge union asked II the counsel had arranged In
what manner the closing arguments should be made.
SURPRISE
Judge Porter arose and said the defence had
10 raise question OF law looking to the direction OF
verdict, and asked permission to address the Court
Judge Porter spoke at considerable length giving thu
grounds which he asked the Court this stage OF
the trial direct verdict OF acquttaL The right Of
trial by jury he held 70 be right granted by the
stitution and one TO be upheld with all It's force. In
this case said Judge Porter, upon the undlsputed
facts submit that there 10 question but Tor the
passed in review very carefully and slowly, and
the Judge Porter said 1--WE now ask for the
acquta of the defendant at the hands OF the Court"
After brief pause the Court asked the defence II
they we're prepared TO present authorities.
Judge Porter replied in the Affirmative and proceeded
TO read from the books various which he claimed
were parallel in point Of law 70 the under cOnsd
Grafton.
In order to sustain the motion of the defence the Court
must say there is no testimony, either direct ndi
rect by which the Jury might be led to believe in the
defendants guilt He cited the facts in the history OF
the case-the mailing OF the letter by Joyce TO Bah
book tanning $500; the corresponding with Of
the consprators alter be indicted through third
party; the giving of valuable Information the same
time he protesting against the raids; sending
Of the "Sylph" despatch notifying the consprators
here Of the abandonment OF raid before the agents
who had been detailed to make that raid had been ap
prised OF the fact-were all strongly presumptive IN
character that they must go the jury for decision
Where there are disputed IL the province OF
tbs MOTION DENIED
III.
reassembling in the afternoon Judge Dillon deliv-
cred the following decison:-
The testimony both sides being closed the defend
ants counsel moved the Court Tor peremptory drec
ton 10 the jury TO acquit the defendant The case
which the government seeks TO make against tho
defendant Is one which largely, perhaps exclusively,
depends upon crcumstahtia evidence which, il is
claimed, shows the defendant had criminal knowledge
OF the conspiracy defraud the revenues in St LOUIS
and that he participated In that conspiracy The
government has sought 10 mpieate him mainly by the
LAT ircu a me- viii fnr h.
government maintained would authorize the jury not
standing alone but in connection with other facts
In evidence infer that II contained FIVE hundred
dollar BILL and that 1t sent to ana received by
PENDANT for guilty purposes and by certain elegrapho
dispatches 70 ana from the defendant The present
motion involves question 70 the relative powers
and functions Of the Court and jury which is OF great
importance Undoubtedly the Court Is Judge Of the
law in criminal as well as In civil cases,
and the jury are bound to receive and
apply the law expounded by the Court
in the one class Of cases the same as IN the
is well known TO the practice in federal courts IL Is
equivalent says the Supreme Court Of the United
same purpose and should be tested by the same rules
demurrer TO the evidence admits not only the facts
might fairy or reasonably infer therefrom
QUESTIONS NOT FOR rHR COURT, But rHE JURY
In deciding upon the present motion II must be as.
samed that all the evidence IN the case is true and
that the Witnesses all credited, for there
questions relating 10 the credblity Of witnesses or
S opOn , me proper deductions 70 be drawn
for the Court but for the jury under the
advice and direction OF the Court. Counsel have
referred 70 cases in which some courts may have inter-
fered with the province Of the Jury in man er which
might be difficult TO reconcile with the views above
expressed Ihe principles which must guide us have
been setued oy the Supreme Court OF the United
States whose judgments have in this court the force
Of authority The doctrine OF the Supreme OF the
Lniteu states - wen shown In Hickman vs.. Jones' 9Th
Wallace, 1919 This was a case of malicious prosecu-
hon in wDicn the Court peremptoily instructed the
Jury 10 acqut TWO Oft defendants In holding this
70 be erroneous under the circumstance The supreme
Court OF the United States says-There was some evil
fence against both OF them whether Ii Is sunciept 10
warrant verdict OF guilty question for The urv
under the instructions Of the court The learned Judge
mingled the duty OF the court and jury leaving to the
81 the court Where there is no evi
fence, or such defect In IL that the
will not permit verdict for the plaintiff 10 be
Fiven such Instruction may DO properly demanded
Ind N ,ntV OF the Court -nl.... \,