Evening star. [volume] (Washington, D.C.) 1854-1972, 1882-12-11

might be Just as well maintained in his absence
| as In his presence. with one exception, and that
his He ia MT
| that privilege at the former trial, but may have
at, saers @ TO ssnI BE ns
standf The afIfdaut submitted showed that he
possessed unusual mental powers. There was
death. II he should not, when occasion
arose. be able to go on the stand, the court would
yet arose. All history shows that man may lose
his sight and retain all his mental powers in per-
| lect he referred 70 Milton ana the present Post-
"Stin," interrupted Mr. IngersoiI, .'the court
would not regard blindness as desirable"
Inc court said that that was not question
Mr. lngerso! said the physician swors tha. Dor
| dangered by his being obliged TO go TO court.
And. = said Mr. Merrick 'if he is publishing
| ticleS every day"
letting Mr. Merrick finish, whether ft be civil or
not Will not cover this case. Men have been
brought into court in cases OF felony or capital
cases with hardly breath I'm their bodies, when
their presence has been necessary. II is so easy
Tor persons to feign sickness and pretend TO be
able to attend court that 1t is obligatory upon the
court TO enforce very stringent rule" Judge
Mylie recounfed the circumstances attending the
nigeiow case a few days ago He remarked that
mas committed crime and has been detected OF
course Is overwhelmed with emotion. The mind
a;su,ng a;n,a on the body he becomes sick. The ply
sclans reported that there was nothing serious in
the case and little ride In the open air would be
gooa @ Ior hm notwithstanding counter afiidavits
were nled the court compelled his attendance.
The government, he thought, had right TO have
Mr. D0rSey's bail forfeited for non-appearance. but
the government was not obliged 10 take that
course. Inc government might insist that the
defendant be brought into court There was quite
as little dmculty, and even less, in bringing him
lnto court as existed In the OF BigelOw. But
this was charge of misdemeanor, and the Ques-
tlon depended upon whether his presence was
necessary.
THE COURT DECIDRs THAT DoRsEY'S PRESENCE IS NOT
NECESSARY IN COURT
In his tthe courtsl opinion his presence was not
necessary In law, and according to the lights he
had, his presence was not important to the cause
In the works OF some OF the bookmakers, they
would find the opinion expressed that even in a
case OF misdemeanor a trial could not 60 on with
| out the presence Of the defendant The court re-
ferred to the case OF Rex against Hale, in 2d
SpragueS reports and other authorities Even
when the verdict was rendered, he said, 1t was
not necessary to have the defendant In court unless
the crime was punishable by imprisonment In
this case. however, verdict could not be received
except In the presence OF the defendants The
court would at that stage OF the trial take meas
ures to have the defendants all present For the
reasons he had stated he would overrule the
motion made by Mr. Merrick to compel attend
ance.
Mr.. INGERsoLL's MOTIONS ovERRuLED.
Mr. 1ngersoll, for the purpose, he said, of saving
the question on the record, made motion OF sew
erance In the case Of S. W. Dorsey, and also mo-
lion for continuance In his case.
The motions were overruled.
we are ready" said Mr.. Merrick, ''to proceed to
get jury"
THE QUESTION OF CHALLENGES.
Mr. Davldge said, before proceeding, he would
like to know what rights the defendants had as to
challenges.
Judge Wylie said he would let them know in
time.
The petit jury was then called again.
Judge Wylle ON the Question Of ChaI.
lenges.
After the jury was called Judge Wylie, referring
to the inquiry of Mr.. Davtdge. said that without
saying word in regard to the former ruling of
the question, or attempting to go over all the
questions that might be raised in conflict, he
would attempt to come directly to the point He
read section S3s OF the Revised Statutes for the
District, providing that on trial OF any per-
the defendant shall be entitled to four
peremptory challenges In this case there
were six defendants, and the question was
whether each defendant was entitled
to four peremptory challenges. He thought that
at common law, In cases OF m1sdemeanor, the de-
fepdant was not entitled to any peremptory cnal-
enges. In capital cases he was entitled to twenty
rot capital, II we were not controlled by Iegisla-
fendant was entitled to four challenges on the
principle laid down in 2d Hale, chapter 35 In the
section OF the law he had read, there was no pro-
several defendants under one Indictment
There was no provision on this subject at all In
the statutes relating to the District But section
Sl9 OF the Revised Statutes OF the United States
does contain provision applicable to such case
It occurred In chapter relating to the circuit and
district courts OF the United States, and the con-
text showed that the section applicable to the
Supreme Court OF the District. That this court
Was court OF the United States had often been
decided. The United States created the court and
legislated for 1t In federal capacity The United
States had the same authority under the Consti-
tuition to create the court OF this District as t had
to create the circuit and district courts Of the
United States He cited several decisions sup
porting the view that Congress, in legisating for
the District, exerted a national power. and
the laws for the District were national not local
The court reviewed at length the powers OF the
court as q United states court claiming that there
was no force in the objection that laws pertaining
TO the United states courts pertained or had ap-
plicaton to certain territorial districts only Sec
lion 8l9, r. S., provided that in all cases where
they were several defend ants or several plaintiffs
they shall be considered as person for the pur-
poses OF challenge Originally that provision was
attached as an independent section, applying to
circuit and district courts OF the United States In
the revision, however, it was given as an inde-
pendent section. Even in its original association
its language did not llmit its operation to cir
cult and district courts The question
Was whether 1t now related solely to circuit
and district courts Why should not the law ap-
ply here7 1t Was not inconsistent with our own
81 q Il to died
trict, what was the consequence? In all other
parts OF the country they would have crimes
prosecuted under the United States law, where
joint defendants were considered as one, while In
the District they would have condition Of affairs
which would almost defeat trial. This court
tried more criminals against the United States
than any other court in the Unit-d States and IL
this law was wise law for other sections OF the
country, it was prc-eminently demanded by the
condition OF affairs here.
After quoting several authorities as to the con-
struction OF statutes, he said that taking the two
sections together they were necessary to each
other for the proper administration OF justice. He
then referred to the section OF the organic act OF
1871 declaring that the constitution and all laws OF
the United States, not locally inapplicable, shall
be enforced In the District OF Columbia. SO this
law, coming to US in the way described, could be
used here.
The Defendants Only Entitled to Four
Challenges I'm All.
After further considering the law, the Judge an
nOunced his decision that the defendants together
were entitled TO four challenges or as many chal.
enges as one would be entitled to on trial alone
Mr.. DAvIDGR EXCEPTs.
Mr. Davidge, for the defendants, prepared an
exception to th6fuling, which the court signed.
At half past one O'Clock q recess was taken until
two O'Clock.
The District I'm Congress.
BILLS TO BE REPORTED TO-DAY.