Evening star. [volume] (Washington, D.C.) 1854-1972, 1882-12-08

That the presumption OF the defense that the de-
cision OF the last trial remained valid at this time
was only presumption and could stand until 1t
was met. He thought the presumption was met
when the court gave notice that he did not regard
the former decision as obligatory and would like
10 nave the question reargued II the counsel did
did not choose to make the arguments now they
could postpone it until the occasion arose for a
decision Ii they did SO postpone it, they did so
with notice that the court did not consider the de-
clslon IN the last trial as governing this.
Mr.. INGERSOLL ARGUED
that 1t was unjust to postpone the decision until
the defense had challenged four men and were
| about to challenge the fifth.
Mr.IngersOll having remarked that the decisions
OF the court were law and the defense were "bound
to swear by it." Judge Wyle said "You don't seem
10 have done that In all cases"
Mr.. 1ngersOll remarked that sometimes he be-
lleved the court was right and sometimes wrong.
81 may be Mistaken" said Mr.. Ingersoll, "both
times"
THE COURT NOT A THEATER CoMIQuE.
This being followed by burst OF laughter from
the spectators, Judge Wylie admonished the spec
tators against disorder. ''This court he said 'sis
not Theater Comique. We Shall have no disorder
here II such outbursts are made the court will
commit the offenders for contempt. II they can
De detected the whole part OF the court house
"here the noise originated will be cleared"
THIS "NEw TRIAL"
Judge Wylie said that this trial was a new one
and any question OF law that may arise is open for
discussion, Notwithstanding the same question
might have been argued at the first trial. There
were some difficulties. however, brushed away
then which 1t may not be necessary to consider
again. The time had not yet been reached when
the court ought to be called upon to decide the
question OF challenges, but the time had come
Wnen tne question could properly be argued.
Mr.. DAvIDGE SAID
he found that the court deemed 1t proper to reserve
1ts decision until the question was forced by cir
cumstances. He conceived it to be O legal right
OF these defendants to know In advance the num-
Der of challenges they had. He desired to note an
exception to his misunderstanding Of the ruling of
the court, denying motion of the defendants that
the court decide the question before the empan.
nellng OF the jury.
Mr.. DAVIDGE MOVES FOR DECISION IN THE NAT
TER OF CHALLENGES.
The court having remarked that no such motion
had been made, and restated the declarations made
by the court, Mr. Davidge offered a formal motion
calling for decision Of the question.
Mr.. Merrick remarked that it should be noted
that no jury had yet been called.
MR.. DAvIDGEs MOTION OvERRuLED
Some time was spent by Mr.. Davidge in prepar-
ing his exception, and when it was completed
JUICE Wylie required him also to put in writing
the motion asking the court to decide the ques-
ton.
The motion having been filed, Judge Wylie said
in answer to the motion, that the motion was
overruied, but the court was prepared to hear ar
gument upon the question and nothing more.
Mr.. Davidge said then that he could renew his
motion when the arguments were made.
Mr.. Merrfck's Argument.
1t having been decided by the court TO hear the
argument, Mr.. Merrick rose and said that as the
burden seemed to be thrown upon the government
he would be brief in Offering what suggestions he
had to make. The whole subject, he said was en-
braced within narrow compass, as they could
get no light from the common law. He would ar
que both the question that had been called up and
the right to challenge juror for cause, and have
him stand aside until the panel was exhausted.
Statutes for the District OF Columbia, pre-
scriblng that on a trial OF a person for
any crime the punishment Of which IS connne-
titled to four peremptOry challenges Section S19
| OF the r s. provides that defendant charged with
treason or capital offense, shall have 20 chal-
| lenges and the government B; in cases OF felony
the defendant shall have 10 and the government s.;
In all other cases both parties shall have s.;
and In all cases where there are several defend
ants the parties on each SIDE shall be deemed
| single. party for the purposes OF chaI-
sections should be construed with each other
statutes for the District, 0u% and tSe e other ses
In the general statutes made no difference as to
their applicability to the District OF Columbia as
the Supreme Court had decided in the case of Page
and Burnstein, ,2th Otto, page 664 that all stat
utes of the United States not inapplicable to the
District were to be considered as obligatory in the
| District
IT WAS NOT FOR THE GOVERNMENT TO SHOW
| that section 819 was applicable. 1t was for the
other side to show that it was inapplicable. The
question presented in the Page and Burnstein
| case, Mr.. Merrick held was the same as was now
presented. The two sections quoted must then be
read together They had, then, q District decis-
| ion declaring that defendant should have four
challenges and general statute declaring that
considered one In respect of the subject OF chal
lenges. II that was not SO the general statute was
nullifed as TO the District He could not perceive
how the general statute was locally inappllcable
the District as to how several defendants shall be
considered respecting challenges; the provision
OF the general statutes collided with nothing in
Since the last trial he had made inquiry as to
the practise OF the courts respecting this subject
cided that section 8l9 r. s. was applicable, and
that the practise OF considering several defend
sfIe an ane Mas Under the
when on the bench in the Criminal Court, had
Mr. Merrick was about to read from a report of
the Hirth murder trial, handed him by District
Attorney Corkhill. when Judge Wylie suggested
was not authenticated, and remarked that he was
| familiar with Judge Hagner's decision.
SCRAP BOOK.
"Col Corkhill," said Mr. Davidge, twill you
please let me see that scrap-book7"
The district attorney having handed the book
over to Mr.. Davidge, Mr. Merrick looked up and
said: "WaS 1t scrap book that / had In my
handf"
"It was scrap book, /" said Mr.. Davidge
"I thought 1t was report OF the Hirth murder
trial, !" said Mr.. Merrick
1t Is scrap book. said Mr.. Davidge, s'and the
Irst figure In 1t Is likeness Of Col. Corkhtll."
ThereupOn Mr. Davidge held the book up, opened
"a n 1ap
cut OF the district attorney, which evolved laugh
at the expense OF the blushing district attorney
NR MYRRIcK CLOSED ms ARGUMENT
by referring again to the practise OF the cot re
marking that Judge Wyiie's decision IN the last
trial had been exceptional