Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1876-02-19

and proper efficacy Of the system. The
/ supreme court in cases where the facts
are not contrOverted, and where the in
| ference to be drawn from them is GER
tain, Necessary and undispu ed. and
I where there is no evidence Tending 10
! the establishment of q Necessary element
| in the case, has held that the Trial court
may peremptoIily direct what verdict
shall be given. The distinction betWeaa
cases which fall within the rule first
stated and those which are for the dee: s.
lJn OF the Jury Il well illustrated ia the
Railroad Company vs. Staut, Il WI.
| lace, 657. Ia this case the supram e
court held that where, in any case, il is
matter of judgment and dis.
cfeliou, OF sound inference, as to what IS
the deduction to b3 drawn from even
undisPuted facts, where different men,
equally sensible and equally impartial,
would make diff re at inteTeGces, that in
such cases the law commits the decision
to the jury under instructions from the
court. The motion here must, in our
Judgment, be Ceaied, for two reasons:
First-There are facts which are rot IN
disputed; fer examIl le, thoss relating to
the letter testified 10 by Everest --c,
M'Giih 6econd-The ,.ron=r inferences
tc De draw f-om the telegrep1s, and
ot,,,,er racts, ale not 30 clear a0d certain
that the court can decl4r their effect as
a matter of Law, The d0atrine contend
ed for by the learned counsel for tie de.
fondaDt, if applied 10 this case, would
require this court TO disregard the we'll
gettled rules laid down by the United
States suPIeme court in the case OF
Hickman te. Jones, above cited, ia
which that tribunal held that the con-
stitutional province OF the iary, uuder
instructions from the court, extends 20
the night ID decide Upon question OF
fact in Geak case as well as q strong
case, snalyz9 the evidence before them,
and determine the weight to be given it,
and the several parts thereof"
Some discussion then TOOK place rs
to The order Ia which arguments should
be made. The rule Of the court had
been for the defence TO open and be fol-
lowed by the prosecution, Dut both Judge
POrttr I and Mr.. Stcrrs thought the open.
ing should be by the prosecution. Tne
case rested on circum5tantisl evidence,
and it was but Just that the defense be
advised as to what portion Of the great
mass of testimony which had been 8d-
duced, large part OF which had been
rendered irrelevant since its intSoduc-
tion, would be relied upon by the prose-
cuticn. As the prosecution had the ter
rible advantage of an imposing srgu-
ment they should not complain OF being
required 10 disclose their case 50 Rs to
give the defense an idea SIS to what they
would have to answer.
Judge Dillon did not think the rule q
good one, and in view of the circum-
stances it seemed TO both himself and
Judge Treat but just. that the prose- cutiOn
be required to open, In order that the Ge-
Tense might not waste time in guessing
on what portion Of the mass OF testimO
ny the prosecution relied. He would
therefore suspend the rule as a matter Of
justice to the defendant.
Colonel Dyer said he had not expected
this, aud had not prepared his argument.
He therefore asked for an adjournment
until tomorrow.
Judge Porter joined in the request, SIS
the defense was equally unprepared.
Judge Dillon aoquiesced, and the court