The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1882-09-05

>WWo oW}W]WWW@
WHEELIl
gressing. l thought I was proceeding ex.
acsly within the line Of the remarks Of Tic
counsel on the other. side. Let me ask
your Honor III you, have cooled a li,tle)
whether It Is not competent for counsel to
remark upon what bis adversary could
hnye proved had he wanted to. II N
The; Court-The: Postmaster General
was your witness. I. I.ilif!loc-,,ttt5- - i
llenkle-But can not say what they
might have proved, II they wanted TOT, i.
The Court-That Is onlyn subterfuge.i L
use u plain word because I cannot use any
other. Af.Ist} ESo.F5 + + ~ y MIA ~
Mr.. lIcnklc i don't object to tho plain.
ness OF language. ri rather likeit. 4
The Court-l declare 10 you, IN the judg.
ment Of this court, pronounced, over and
over Iagain, that It is 4 malter'o the inost
perfect indifference what the opinion Of
tho Postmaster General was; II the Post.
muster. General had been siee,ed In the
most fraudulent conspiracy aud was not
enbaeed In this indictment, ,it would have
made no ditlerenoGsF!& bUlJUNiFiI
Mr.. lIcnkle-Certaialy no.. a. +
MIR. Totten-The charge In the indict-
ment is that the Postmaster General, was
deceived. = II he were deceived the prose.
cntion might have proved it, md Mr..
llenkle had a right to follow The precedent
Of Mr. tlcrrick, and comment upon their
not having proved It. : i
The Court-Do you say he was not de-
n. ro',sn-cs,tainly vo we'd do. ',.''-' -',>
y gCourt-The counsel yhasi no right 2 to
comment on the prosecution for failing TO
call the T. NJ. Genl TO prove the fact that Il
was not known whether he could prove It
or not. VIZ ;.EIi;A%. ~ ihlI'
), 'IIenkle went on tol argue that he
ilad right TO comment OIL that flct when
he was ansrily interrupted blythe Court.
wilh the exclamation: II shall stop this.
There must be no more said on the sub.
]ect.' Up jumped all the counsel for tho
;ma en'e'ucni"''u'''s AL exception 10 the rul-
~; ~ Eo..o- w w .,,'-..:,ff ~ Ft"' - 'iiS%s
rou., ro.cliIMe MI @ani an exception,
,.;tS"n0.,, Hou,.A i Know. you 40. - have seldom
%Mussseu ,;i. d more ilayrant oitense in get.
uu .,s ~ teai1alhs un'alr'y petofe Jury. They
Totten-We think they are. bt,54 80
w .sIh.sNit hH'..; ~ question lor the jury.
ta,,s tou. "o''oF uoes NOT BIZ mere TO decide
'"f,o. e.. 1,... 9. Wv 7N''" ''"" +
/" HM"ui.Ei M'l.,., Khow I II. ,N;:i. I
.ian t Al aAe eAceptlons 10 the last re-
'nn,As " tne couf'' ,l ~
necess t'ieh 1aKeh: ~
49,. pu!tpE nmE the ln!ermlssion the. courtroom
WI. WIS :. h..eu lieu WIN spectators and when the
.ou.. "as c"lleu Tue tne scene :resembled
many scenes that, occurred during the
uut'gnn W. .ilM'. u was understood, that
"nc, "t'o, inseisoLi "o9ld oeeln 'areumentin In the
nieInGoI, s.,alS g9t ine nldlence llwas disap.
U,'h.en, H.. lieu, loF i1enkle dla not conclude until
sae. sao 'gn' G;n di Aolournment. 4As he took his
sea,. se"e tils iiohor saio that during the re-
zee. .eSs ne naa examined the record of the
si''uol.y I.I " tostuiaater Heherai Key and
r;aL. Lay come 10 .he conclusion he had done
fisht ia eScino'ne the RENT MS which
iienKle e, was ABOUT 10 utter Just before re-
tess lnose remarks had been based on
M iss.s ana Tue prosecution had Jailed to call
~ nehelai hey ior the purpose Of proving
1e Aau 3eeu h'poseu upon. There was
,n, no evidence ut all TO show that
re, 1nc prosecution knew that General
ha,, Muy could prove me tact that ho
aau ;,;a o.' oeSn imposed upon. On the contrary
nis eVluehce N tne case showed that he
was :, no. aware ne had been imposed upon
at all. On that ground the court thought
,isoo ,ie so'''ren,s m oI !ne counsel were out Of
p!Ase. pNa Sounsel mug commented lnTthe
not l'hiIc on '!1e lact tnat the court had
e4clInea yen. heys evidence and was en-;
gagged IN drawing lnierences from the de-.
clsloh OF the court when the court saw
proper TO interfere Then counsel had
changed this ground and proposed to go'to
tue Jury with the remarks founded on the
iact that the prosecution had failed to call
ten: Key to prove that be hud been i'm
posed upon, and it did not appear that
key could have proved that iact.
i was plain, thrcefore, that there was no
ioundatIon Tor the comment Of, counsel Mt
TIE risk, therefore, : OF appearing little
d'scourteous to counsel: /
Z, The Court had ielt called upon 10 assume
tue ground and felt, called upon now TO
maintain background that those remarks
were out OF place. ,
wilson, desire ITO. take exception to!
the ruling which the Court has just made
and especially TO that portion, which the
Court has passed on what, the. evidence ,.of
nTNvDQ
'eH9s 70 prove OF tends not 10 prove.
IenS'G.l Sienl;"i. a,so .e. except :.
ception there iii anl,csr @ ,Ln ieIo,u oi ea
Henkle, and il they arc rs much out OF Of
place as they seem l have heard there can