The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1886-02-03
Synopsis of Col. Euseue B. Gary's Ar
Eumcnt.

May 1t please your Honor:
The motion which the State makes in this
case is indeed very unusual one. Nnd has
our IN repors There SO is m oy
one case In our reports, which shows that
such motion was made, and as the motion
made in that case was properly, refused on
other grounds, IL was not decided whether or
not the State lad such right. 1 aliude to the
case Of the State against Addison In IS. G..
We in the first place submit that the State
has not the right to make such motion. Our
Constitution recies that the right Of trial by
jury shall remain inviOlate, and although
there is another provision recitng that the
venue in both civil and criminal cases, may
be changed. for certain causes, it will be found
upon a careful investigation OF these proriS-
ions, that the intention was to guarantee to
the prisoner those rights which he had mt
common law, and not to confer any new
rights upon the Government. Now one of
tge incidents Of the trial by jury at common
peer and of the neighbOrhood Or Vicinage,
this right is tharelore guaranteed by the Con.
stitutiOn, when it says that the right of trial
by jury, shall remain inviOatn. lColone Ga
ry then commented on the cases relied upon
by the State, and said j l Twill now call your
HOnor's attention to the notice of motion in
this case and point out what we submit are
fatal defects. to wit: Because the notice of
application does not state the grsunds upon
which II is made, and the provisions of the
Constitution, and the Act embodyng It's prin-
ciples, both state that the application for
change of venue must he made on the ground
that Il fair and impartial trial cannot be had.
In the next place such notice Of application
was not accompanied with copies of the affi-
davits upon which II would be made, where
as section 2l14 shows clearly that such was the
intention Of the Act. The reason for the
rule is that The prisoner might have time to
rebut IL he saw tit, the facts stated in such af-
fidavits by by counter u1iidaviis, anil that he
might not he taken by surprise. [Coloncl Ga.
rv reviewed the dis as trous Consequences
that might befail the prisoner If he was fore
ed 10 argue q motion for n change of venue
motion were heard for the first time. as in
this case, by the prisoner when the motion
was made.
The principal reasons urged by the State for
the change Of venue. are that there have been
two mistrials, that there was great difficulty
in getting aiury and because the proceedings
in the case have been published by the pa
prs Of the county. The fact that two juries
ground for a motion to change Of venue, BY
the state, because the law does not presume
that the prisoner is guilry. and that the State
is thirsty for his blood, but on the contry pre-
this reason he wonld have much better
ground than the State to move for II change of
venue, because he has been deprived Of his
liberty with the presumption of innocence In
his favor, while the State has suffered in no
respect.
The fact that the juries have failed to agree,
surely cannot for a moment sustain the idea
that the trial was unfair or Impartial.
AS to the delay and expense of getting jul
~, am free to say there Is something more
important al stake than such paltry consider
atiOns, which know cannot for q moment
weigh with your Honor, because they arc not
mentioned In the grounds for such change.
Who is there in our county so mean, sordid
and selfish rs to be willing that the life of an
American cilzen should be sacrificed for the
purpose of saving his country a tritiing, ex-
pense? Surep human life is not so lightly
regarded by any Of US? 1t connot be serious
~ cOntended that public sentiment is SO
muchi in his favor that n fair and impartial
trial cannot be had By the state. It is a well
known fact that condemnation throughout
the county and State has been heaped upon
the prisoner and the bitter and partiZan edit
orials of certain Of the press have had their
influence in inflalning the public, mind
OF all these facts that The State can complain,
that n fair ane imporiial trial cannot be had,
reminds us of the old soldier who killed the
sheep when hungry for meat, because, he
would not let any sheep bite him. Now does
it not seem from these fhcts that the learned
Solicitor for blood, and has about as good
grounds for changing the venue rs the SOL
dier had for killing the sheep
Why your Honor it would certainly be a
severe rebuke to toe people of whole county,
to say thal Anderson is capable Of giving to q
prisoners fair and impartial trial ana yet
AbDevile with her ilnstrious history ;nis is in. in,
afraid that If this case were changed to An.
derson, he might possibly. because Of the
love and esteem they have for him and the
memory of his very illustrlous father, who
was such an ornament to the State and the
General Government unconsciouslY sway
them for the state by his eloquence and have
the very blood OF an innocent man OH his
hands?
Your Honor, this is no game of push pin to
see who can geta verdict, but to accord to an
American citizen his inalienable right of be-
ing tried by a jury of his peers, selected from
the vicinity of the alleged crime.
In conclusion Colonel Gary reviewed the
aflidavit$ submitted by the State and con-
tended tat the atlidavits on the part Of
the prisoner fully rcbutted any showing made
by the State that q fair and impartial trial
could not be had.]