Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-10-09
SUSTAINED BY COURT
The Demurrer in the Ford's Theater
Case Overruled.
COMPLAINTS OF AN EDITORIAL,
Mr.. Davis and Mr.. Perry Charge
Duress in the Proceedings.
THE COURT OF APPEALS NEXT

Judge McComas this morning overruled
the demurrer filed by Messrs. Ainsworth,
Dant. Covert and Sasse, against the two
indictments returned against them for man
slaughter for having been responsible for
the death of one LOTUS, one of the victims
| of the Ford's Theater disaster of the 9Th of
June last. and directed that the four defend
| ants should be given one week In which to
plead further as they may be advised. This
| additional time was given the accused in
| which to petition the Court of Appeals to
| allow an appeal to that court at the present
| time from Judge McComas' decision Of to-
day overruling the demurrer.
In anticipation Of Judge McComas' deci-
sion, the courtroom was crowded, but the
| throng witnessed a proceeding, prior to the
| rendering of the courts decision, not antici-
pated. When Messrs. r. Ross Perry and H. E.
Davis appeared in court it was observed
that each held In his hand a copy Of The
Evening News of Saturday last. The crowd
| ed courtroom was not left long in doubt,
| for Immediately after Judge McComas had
excused the jury for an hour and one half
Mr.. Davis arose. His remarks were based
| on the News editorial of Saturday in which
| 1t was stated: 1T Is quite definitely under
stood in legal circles that Judge McComas
will overrule the demurrer in the Ainsworth
case, and that the indictment will be sus-
talned: And also, referring to the demur-
rer 1T is based solely upon technicalities
and this is a case in which the people are so
vitality interested that they will not allow
| techncalities to prevail"
Mr. Davis said he and Mr. Perry felt 1t
| their duty to call to the attention of the
court this editorial as involving a direct
affront to the court and direct contempt of
the court, to say nothing of its outrage
upon proper public feeling.
Il desire to call your honor's attention to
the grossly improper character of that edi-
torial. said Mr.. Davis. "It starts out with
| the assertion that it is not merely surmise,
not merely that 1t is the judgment of the
legal profession. not merely that it is the
Judgment Of those who have given their
attention to the matter that the indict-
ment will be sustained but that 1t is quite
definitely understood In other words,
your honor must have told somebody your
honor must have said something in order
| to give somebody definite understanding
vance of your declaration of it from the
bench. A grosser contempt of the court
1t seems to me impossible to conceive. Nor
Is that all. This demurrer 1t is said is
| based upon technicalities. as to which the
editor of this journal may have his opinion,
and he is entitled to 1t, but mark your
honor: This is a case in which the people
are so vitality interested that they will not
allow technicalities to prevail Is 1t that
your houor Is to be mobbed If you sustain
this demurrer? Is 1t that our clients are
to be lynched II you sustain this demurrer?
Is 1t that Mr.. Perry and myself, because of
the fearless and loyal discharge Of our
duty, are to be made the victims of public
assault II you sustain this demurrer? 7
desire to know what other meaning can be
attributed to an expression like that?"
Duress Changed.
The moment Mr.. Davis concluded Mr.
Perry arose and addressed the court AT
the very inception of this case" said Mr.
Perry, what was intended to be the in
itial step in the administration of the law
Of the land was stopped. not by a military
frih al OF h1y lox., In,
by the angry denunciations and threats Of
mob. That spirit has followed this case
from its inception. and regret to say that
the Indictment upon it's face shows that
1t has been pandered to; that the very man
who under no possible circumstances can
be held to more than an omission of SUI
ment. paraded before the community in
answer to the cries OF that mob as a main
offender. and all through this community
it is called 'Ainsworth's case and Aims
worth's COUNSEL and it has been lyingly
asserted that Ainsworth's money is paying
for the defense in all of its branches. as
well for Mr.. Davis as for myself
There has hardly been a day there was
not a day, when this grand jury wes in
session. that there was not duress
brought upon 1t, or one of it's members
this case 1 should have asked your honor to
throw this indictment out of the court as
contaminated, worthless. sinking thing.
One of the very grand jurors who found 1t
w III.
to have said that the Jurors would have
found 1t anyhow. even If they had not been
afraid not to do it, While this very argu-
ment has been pending, there have been
these attempts to bring to bear upon your
honor the fear of public opinion. / did not
think the other day. when l had occasion
to picture to yOu Lord Marsfield's conduct
that you should soon be placed in ex-
actly his situation. 1 have been loath, if
your honor please. to take this action in
this matter. but wher we are brought face
to face with the attitude of one member
of the press. such as was assumed by this
editorial. not the work of a reporter but
the editorial. as was assumed on Saturday.
why then have got to confront this ques-
ton.
Are we to go through a farce here? Is
your honor to sit there, apparently admin
istering law and threatened by member
of the public press with the angry people
behind you ready to hold you to RESPONSE
bility If you did not decide the law as they
want it decided? l do not stop to notice
the imputation about your having disclosed
your judgment In the presence of the
graver fact that mere imputation becomes
utterly insignificant. Here is the grave as
pect of this case: This demurrer is based
solely on technicalities. and it is case in
which the people are so vitality interested
! that they will not allow technicalties to
prevail. This was printed on Saturday.
l do not know whether your honor saw il
or not. but If you did see it 1t was a direct
| instruction to you, while your judgment
| was yet presumably uniformed on this case
while it had not taken official shape, be-
! cause in contemplation of law 1t does not
| take official shape until you deliver it, it
| was an instruction to you that you were to
| follow in interpreting the rules of criminal
| pleading. which the people call technical
| ties In prescribing the measure of infor-
nation which would be afforded to a man
who comes in here to meet q criminal
charge, that while discharging that grave
duty you were to be Influenced, not by the
| law, but by the effect of pending public in
dignatiOn and punishment.
"Now, IL these things are done in the
green tree what will be done in the dry?
If this paper does not hesitate to threaten
you with popular Indignation how can go
before a petty jury, every member of whom
may feel as that grand juror said he felt.
that il he did not do what the people want
ed him to do he would be afraid of the-con-
sequences which would follow.
Mr.. Birney's Remarks.
District Attorney Birney referred to the
publication. IT." he said. your honor. 1
had not supposed that the bringing of this
editorial to your honor's notice would be an
occasion of going beyond that editorial to
insinuate or charge because the words
come very nearly that in the excitement
which my friend Mr.. Perry has evinced over
the editoriaD improper conduct on the part
of any one who is in no wise connected with
the newspaper which published the edi-
torial. If 1T is intended to be charged here