The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-02-19


TO try whether weak or strong it was their right
10 pass upon Il; II not proper for the Court 70
ErsF lhs q ss fsss naE s6 amy othsr from
me exercise OF their y1Igms1si snn IVA
overlooked the line which separates
TWO SEPARATE DUTY
Though corelatve they distinct and IL is important
be kept so; II is much within the province Of the
jury decide questions OF fact as of the Court to de-
eide questions OF law The Jury should take the law
its application to the facts and the facts them
selves II is proper for them to determine
give to trial by jury It's value Experience
has approved their Importance They
indispensable TO the harmony and proper efficiency of
the system The Supreme Court, in cases where the
facts not controvered and where the inference to
be drawn from them is certain, necessary and unds
puted where there is evidence tending TO estab
sh necessary element in the case, has held that the
trial Court may pereppory direct what verdict shall
within the rule first stated and those which are for
the decision or the jury is well Illus
az Wallace o57 In this case the Supreme Court held
that where in IL is matter OF judgment and
discretion OF sound inference what is the deduction to
be drawn from even undisputed facts where different
men, equally sensible and equally impartial, would
make different inerences such cases the law commits
TO the decision OF the jury under instructions from the
Court
REASONS PoR DENIAL
The motion here must in judgment, be denied for
two First, there facts which not
disputed For example, those relating TO the letter
testified by Everest 10 McGil Second the proper in
ferences to be drawn from the kilograms and other facts
are not so clear and certain that the Court declare
their effect matter of law. The doctrine conended
for by the learned counsel for the defendant applied
to this case would require this Court 10 disregard the
well settled rules laid down by the United
States Supreme Court in the case Of Hickman
Jones' above cited which that tribunal held
constitutional province Of the Jury instructions
from the Court extends TO the right to decide upon
questions OF fact weak well as IN a strong
case anayze the evidence before them and determine
the weight to be gwen TO it and the several parts
thereof
Some discussion then took place to the order In
which the arguments should be made The rule OF
the Court had been for the defence TO open
both Judge Porter and Mr.. storrs thought the
opening should be by the prosecution The rested
the defence be advised to what portion of the great
mass Of testimony which had been adduced and large
part OF which had been rendered irrelevant since the
introduction would be relied upon by the prosecution.
As the prosecution had the terrible advantage Of
being required to disclose their to give the
defence idea as to what they would have to
Jugde Dillon did not think the rule good one, and
in of the circumstances IL seemed to both himself
and Judge Treat but just that the prosecution be
quired to open in order that the defence might not
waste time in guessing what portion OF the mass OF
testimony the prosecution relied He would, there
fore suspend the rule as matter OF Justice TO the de-
PENDANT
ARouMESr TO BEGIN To- MORROW.
Colonel Dyer said he had not expected this, and had
not prepared his argument He therefore asked for
adjournment until tom
Judge Porter Joined IN the request as the defence
was equally unprepared and Judge Dillon acquesced
MAauL's SUSPICIOUS TESTIMONY.
It matter Of general surprise that the govern
ment after calling Gavr Clerk OF the Board of Police
Commissioners, who failed to respond, had other
witnesses in rebuttal Of Magil tho letter carrier.
Magills suspiciously, whiskined and disspated ap-
pearancc and his evasive mode of giving his testimony
well his utter breaking down-during the
examination, not noted yesterday tending to
prejudice the defendants case but damaging facts in
regard this witness have transpred yesterday
which absolutely require mention. II appears accord
ing to rumor that Magil Is shitless unreliable in
dividua Of doubtful repute He was twice dismissed
from the police force and the police authorities give
him q bad character His evidence was received
with general ncredulity and most careful OBJ
servers now declare that It will hurt the
defence greatly, as by putting him upon the
stand they virtually admitted that Everests statement
and had to be The prosecution
openly state that Magils whole story was concocted
by Filley, Postmaster Of st. LOUIS partisan of the
administration and an active sympathizer with Bab-
cock Public opinion 10 very excited on the subject,
and nearly everybody In St. Louis pronounces Mr..
Gis testimony suspicious and its manifold improb-
Abilities the fact that he took out these letters out
Of his beat, while he could not remember q single in
which he had done that before, that he did
get the receipts for the returned letters signed
the reRuiallOnS preScrlOe ana WONDERFUL memory
in remembering every minute OF the description of
these envelopes while he fails recoect those ofan
others returned by him actively discussed every
where.
oYFIcE- HOLDERS oBsrRUcTNG JUSTICE
District Attorney Dyer stated last night to friend
that he had to tight against every federal ocehoder
the city in this case and Colonel Brodhead told
to-day that If the prosecution called witnesses to
impugn Maglps character Filley and several of his
assistants in the Post once would have beer ready
corroborate Magill Bingham who was to be
called In relation to the Hoge letters alleged have
been surrepttiousy obtained by Sherman, did
rive in time and for that Sherman also not
called The special correspondent Of the WestlicAe
Post at Washington presumed to be Carl schurz has
searched the Of Babcock's estate transac
tons within the last ave years. and gives the total
over $139 900.
Assistant Chief OF the Secret Service Brooks will
shortly go New Orleans TO further the investigation
of the gigantic frauds said to have there perpe
trated.
PROGRAMME.
Tomorrow morning Mr.. Brodhead will open for the
government and probably speak until recess Mr.
Storrs will occupy the afternoon. Mr. Porter will fol-
low him Monday morning and Mr.. Dyer will close
Monday afternoon. The Judges charge will proba-
bly, not be read before Tuesday.