The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1886-02-03
these carried condemnation with 1t, the press

he refers to-the State against AddiSon)-he
would have seen that the solicitor was abscnt
and the motion was made by General NJ. w,
Gary, who was acting for the Solicitor at that
term Of the Court. Counsel has stated that IT
has never been decided who Is "the party In
!nterest." He read simply one sentence, say
ing that it is difficult to decide this question,
but had he read the balance OF the paragraph,
he would have seen that Judge Moses decides
that where State makes the motion, the So.
licitor is the proper party to make It, That
Was one of the troubles III the case OF the
State against Addison, the motion and atiida.
VII bsnS made y cpS
sIbject Is the People against Webb, decided
by Justice Cowan of New York. This decides
sluarely that the State has the right to make
the motion, both by the statute law of New
my friend meet this:authority He says JUS
tice CDwan was knave or fo0. Justice
Ccwan's opinions stand very high with the
Profession throng bout the whole of the United
States, and his Knowledge. and justice, has
ever been praised in his own State;
Bishop the most popular law writer In the
United States, does not agree with my friend,
but quotes frequently, Judge Cowan's decis-
ions. ArchbOld agrees with Judge Cowan as
TO the Comm IN l. wv right in the States for
the prosecution to move for change OF ven ven
hs Wharton is of the same opinion, Chit
ty is referred to by Judge Cowan as authority
for the same position The Counsel says & ne
Section POI, we find it laid down specificall y
The only author that my friend seems to
think knows anything about this question IS
Mr. Thompson, who has written very learn
ed article for the Criminal Law Magazine u.
on this subject. But even his chosen author
atpase 795 of the fifth volume-just one page
beyond where my friend was readin%-an-
iounces is the settled law of most Of the
States, that the State may change the Venue
with or without specific statutory provisions
20 that effect. Now, the State can only DO It
6y u statute or by the Common Law. We
must therefore conclude that our friends own
author agrees with Judge Cowan.
The next position taken by my friend is,
subject Is unconstitutional. One of the Sen-
at0rs last winter gravely announced that the
present constitution Of South Carolina was
Unconstitutional. NY friend "a must aus, agree WIN
Article v, Section II, he would have found
hot only the authority for the Statute, but
that the Sia!uteiwus almost In the words o
the constitution.
The Counsel maintains that the ac-
cused must be tried by jury of the vicinase.
do not remember any such provision III
our constitution. But even If 1t were there,
It has been decided Sc reral times, that any
where within the Circuit is II compliance with
that requirement.. Our statute is full and
Clear upon this subject: In o civil or u GRIM
case either party Interested may make the
moiion, and rs. G.. State against Addison, de-
cides thai the Solicitor in q State case is the
party interested. and by entertaining the APP
peal OF the State in that case recognized ana
sffirnis the right Of the State to make such q
motion.
If your Honor is satisfied that we have such
rsgnt, the only matter left to discuss Is, Whcth-
er the facts stated are sufficient in your Hon
or's Judgment 10 require the change, for the
statute makes it O matter resting purely In
your discretion we saye sa1m,ltea s mnaS eS
cry part OF Abbevile county, stating the fats
Why they think fair and i'm partial trial can
rot be had in this county. We might have
Aad three hundred as easily, but We thought
that numbers amounted to very little. We
Thought that the representative men whose
affidavies we have submitted voiced the sen.
time,t of the best people OF Abbeville coun-
ty. What facts do they give for their belief
and for your Hnnors consideration? First,
that there h,ve heen two trials OF the case,
many people attended Court, heard the te<tf-
lnony, and had made up their mind upon the
cas-; that fail proceedings OF each of these
trials have been published In the newspa-
accounts and have come to different conclu-
sions; that three extra venreS had TO be Is
sued for the last trial before jury could be
obtained; and that OR account Of the divis-
ION OF opinion, and the great publicity given
the case. even ii n jury could be obtained, it'll
wsuld result In o mistrial.. These facts can-
OF men have signed their atfldavits. all they
can say is that they do not believe that the
public Is preluatcet against tie State, $"
they nGot hiS nyc hsr Iaf tsa nv MS @as
made TO form jury, so the authorities Say,
but we did not desire to make the motion as
Long us there was any possibility of an agree
ment. The last two trials convince us that
there Is no such hope, and for that reason we
have made the motion, and we have no apol-
Ugy to offer for having done so. We have ex-
ton by the law: Simply that aud nothing
more
Counsel has criticised most unjustly the
men who have made the attiiavits tor the
change. They have done their duty rs good
citizens, and should DC commended for their
manly conduct. I shall not crticise those
who have male counter afhdavits, but l an
Informed that two OF the men who sat up
on q former trial have sworn in those attida:
Wits that the State could get an impartial
triad. They know whether or not they have
sworn the truth, for they know the facts and
circumstances which took place at tn At trial
in and out OF the jury room.
Counsel say they only want fair and i'm.
inake sach strenuous effort to keep the case
from being tried away from Abteville? Does
not their very zeal and the great number of
s,4sidav its-ohe hundred and eight in Number
your Honor To think that the prisoner ex-
pects some great advantage by trial at this
time?
that Jury can be secured In Abbeville coun-
ty who can be secured IN Abbevilte county
who will say, under the proof IN this case,
that the prisoner should:so snwhipped OF JUS
II it was hard to get jury before, it must,
OF necessity, be- harder this time. forSnore
leople have made up their minds upGn the &c
securing az unbiased jury-and that is all
that want NOT one for the State or for the
l'risoner-men who. after hearing the testi-
moDy, will decide according 10 the testimony,
and think such ajury would more probably
lie ohtlincd in a county where so much ex
element and discussion has not existed.
This Is matter which appeals to your discre
aion. and the responsibility rests with you in
deciding the qA-stion. have felt. in duty
bouud, 10 make the motion in the Interests of
fair and i'm partial justice, and now your Hon
Or must decide where the trial shall be had In
Anderson or some adjoining county. where
ever you think fustice can best I've DONE If
titS for u removal. we will prosecute the case
hcre-wherever you send tive will prose-
cute the cs.se to the best Of our ability.
Decision OF the Judge upon Motion
... of the Solicitor.
The Judge In substance, said:
This motion Is made upon the part OF the
State TO change the venue, In the case of the
State against John G. Ferguson, indited for
murder upon the ground that fair and i'm
partial trial oi til e case can not be had in Az
neville County. The motion is void upon af
fidavits Of some thirty or more citizens of the
county In which the opinions is expressed,
that a fair and impartial trial of the case can
not be had on account Of the public interest
excited by two former mis'rials in the case.
eeedings therein. The apprehension is also
expressed in the afridavitS that it will be diff.
cult to secure jury. and even If a jury can
be exnpannel the opinion Is expresses that
am satisfied that the hcnoable and eff
cient Solicitor Is alone prompted by a sense
Of official duty in making this motion. The
duty and responsibility, however, devolves
referred to in said affilavits, Whether or not
the State would be prejudiccd by a trial of