The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-09-08
A Warm Time at the McMa-
han Hearing.
CURSED IN COURT ROOM
DECLARED HE WOULD FOLLOW
THE LAWS OF 1897"
MONTGOMERY REvERSES HIS DECISION
In The Summers Case and Declines to Free
McMahan. Said he Found he Was
Wrong and Was not Afraid
to Admit il,
to Admit it.

VIUIlS dtiu Udo HUl MI du
to Admit it.
There was a warm time before Justice
Montgomery yesterday morning when
Mahan came up for a hearing. After
full hearing, Justice Montgomery re.
versed his decision in the Summers case
and refused to liberate McMahan. But
the warmth was in the preliminares.
Captain Day made it the occasion OF
swearing aloud in the court room and
of general display of resentment and
pique that was astounding, even to those
who know him best, and for declaring
that heneeforth he will "cut loose from
the Executive Board in the conduct of
the State Prison and will run it ac-
cording to the laws of 1891" The rea-
son for all this was that the Executive
Board declined to permit the case to
virtually go by default as did the Sum
mers case and because Mr.. Travis in the
absence of any record refused to swear
that the conduct of McMahan had been
good since his incarceration ten years
ago.
1t was also brought out that at the
hearing of the Summers case there had
been no citation of authorities and that
counsel on both sides had practically
agreed as to the Interpretation of the
law and that Justice Montgomery had
therefore ordered the prisoner re
leased.
Counsel present in the case were Col
Argo and Judge McRae representing
Captain Day, Mr.. G. NJ. BusDee repre-
senting the Executive Board of the
prison directors, and Mr.. ]. G. l.. Har-
ris representing the prisoner The
Executive Board was represented in the
case by consent of Mr.. Harris, who APP
peared for the prisoner.
The point at issue was whether when
the sentence of life prisoner is com
muted to imprisonment for term or
years the good conduct allowance of
time and money shall be reckoned from
the date Of the prisoners incarceration
or only from THE date of COMMUNICATION,
and also whether the act of 1899 was
retroactive or only applied from the
date of its passage. That was the
status of the case as made up in the
returns prepared and submitted by Cap
tain Days counsel. The Executive
Board, however, was represented and
there was where the rift in the lutte
came in.
A few minutes before the case was
called Mr.. Travis, chairman of the Exc
cutive Board, received information that
while there was no record of conduct
kept for McMahan up to last April,
since he was originally a life prisoner,
that as a matter of fact his conduct
had not always been good. When the
case was called he drew attention to
this fact.
This brought Captain Day to his feet
in moment Il shall not put it in the
returns" he exclaimed In a passion,
"and say l had information when I did
not. Why did you not call my atten-
ton to this before?" he said angrily,
addressing Mr.. Travis. THAT is my
return" he concluded with emphasis on
the my.
Mr.. Travis: Il have just this moment
received the information"
Justice Montgomery: II hope, gentle
men, you will remember where you
are"
Mr. Harris: Il decline to let the in
formation be made a part of the re-
turns"
Justice Montgomery: 81 am not sit
ting here to turn a prisoner loose I'M
less he deserves to be. | shall certainly
allow the information
Mr.. Harris took the floor and de-
clared with heat that it was agreed
yesterday between Captain Day, Mr..
Travis and himself that 1t was to be
made a test case on the law. He OBJ
jected to the introduction of a question
of fact.
Justice Montgomery explained that he
wished to be regarded as merciful
judge. His sympathies ran with the
prisoner (Summers) before and he had
no apology to offer for releasing him.
Mr.. Busbee: MAY it please Your
Honor, | offer no criticism"
But criticisms have been made" the
Justice replied.
Here Captain Day who, white will
anger, had been chewing his cigar vi
ciously since the proceedings begaI
broke into the dialogue:
81 would most cheerfully have pau
into the returns that this mans con
duet was bad if | had known it il
time. But now here comes Mr.. Travis
ready to swear it is bad when ] hay,
been told nothing about it. 1t is no
fair to me; | won't stand it." AnC
Captain Day sprang from his seat ant
started to leave the room. As he passet
Mr.. BuSbee counsel for MIR. Travis, III