The morning news. [volume] (Savannah, Ga.) 1887-1900, 1900-03-13
DEMURRER WAS 0VERRULED.
JUDGE sPEER DECIDES INDICT-
WENT IN TYSON CASE TO BE GOOD.

District COurt-StrOng Array of
Counsel Appeared for the Accused
Besides the Demurrer Pleas in
Abatement, ON the Ground of Mis-
nOmer, Were Filed as to Wheeler
and Watts-Evidence and Argu-
ment on These VIII Be Heard This
NOrning-Wheeler Has Succeeded
in Giving Bond.
The trial of Daniel a. Tyson and his CO.
defendants in the indictment found against
them by the last grand jury began in the
federal district court, before Judge Speer,
Yesterday morning. The morning session
of the court was taken up with arguments
upon a general and special demurrer to
the indictment, flied by counsel for the
defense,
Eleven of the defendants We're in court
when the trial began, and the room was
flied with the witnesses, jurors and in
terested spectators, whom it had attract
ed The defendants were represented by
Messrs. Tw.ggs & Oliver, Anton P
Wright, William b. Kent, Fred L. Saussy
and W. NJ. Hayward opposed to whom
were District Attorney Marion Erwin and
Assistant District Attorney William r.
Leaken. Mr.. Leaken, however, took no
active part in the arguments made upon
the various points and contentious of law
that were presented.
When the case was called Judge Twiggs
read the demurrer to the Indictment that
had been prepared, and was offered by
the defense. Ii took the position that the
Indictment did not allege that intention
20 use the mails for the purpose of per-
petrating the fraud was a part of the
Conspiracy. It was contended that be-
cause of the failure to charge this direct
by and specifically The indictment was
fatally defective.
The demurrer was argued at length by
Judge Twiggs Mr.. David c. Barrow and
MIR. Anton P. Wright. Mr.. Wright con-
Guided with a few short, crisp sentences,
that placed the contentious made by coun-
sci directly before the court.
The answer TO these arguments made by
the district attorney was the reading of
the first count of the indictment, which
certainly seemed, to the lay mind. TO al
lege the intention on the part of the con-
spirators to use the mails to defraud with
all the clearness the language is capable
of conveying. Judge Speer at any rate,
took this view of the matter and promptly
overruled the demurrer. The indictment
is perfectly good" said the court.
Following the demurrer the counsel for
II. B. Watts and ]. S. Wheeler, or rather
for the two men indicted under these
names, offered pleas in abatement The
pleas offered to show that the men in the
custody of the marshal, whom it was at
tempted to make defendants, were. re-
spectively, c. H. Watts and A. l.. Whee-
Ter, that these were the only names by
which they had ever been known, that
they had never held themselves out under
any other names and that for these rea-
sons the indictment was defective and
should be quashed as to them.
Mr.. Erwh stated his position on this
subject to be that whether the names
given the men in the indictment We're
those by which they had been christened,
or which they customarily or usually
bore, they were the names under
which they had operated to consum-
mate the frauds of which the indictment
was the result and that, therefore, they
could be tried and convicted under them
Judge Speer suggested that il would be
as well to submit this question of identity,
with others in the case, 10 the jury 50
that 1t might be passed on at the same
time.
This course appealed to the district at
torney, who Stated that it was the prac
tice in the court, but not to Judge Twiggs
PENDANTS interested in the decision of the
pleas in abatement Mr. Barrow stated to
the court that he was not willing to waive
any of the rights that his client had in
the trial of the case against him, and as
the law gave him the right to have the
plea in abatement decided before the prin-
cipa issue was Joined, he would insist
that this procedure be followed. AS this
was a right given by the law, there could
be no valid objection made by the district
attorney.
IT was agreed that the decision of the
matters of fact made the basis of the
pleas should be left to the court, without
the Intervention of a jury. Because of the
fact that most of the witnesses had come
in just before the court was called to or
der and that, therefore, counsel had had
but little opportunity to confer with them,
Judge Speer granted a recess until $3.50
O'Clock this morning, when the evidence
touching the identity of Wheeler and
Watts with the men indicted will be heard
and arguments thereon made The jury
and other witnesses are not to be required
10 attend before 10 o'clock and it is hoped
to complete the hearing on the pleas in
abatement and decide that question fin
ally before the latter hour.
There seems to be some difference of
opinion between Judge Twiggs and Mr.
Erwin as to what is necessary to be proved
before the trial as to Watts and Wheeer
can legally proceed. 1t is the contention
of the district attorney that if he can
establish the identity of these men with
those the grand~jury intended to indct,
and prove that they have held themselves
out to the public under the names used
IN the indictment, this will be sufficient.
Judge Twiggs, on the other hand, con-
tends that this will not be sufficient. but
that the men must be shown to be identl-
cal with those indicted, in name as well
as Otherwise. Proof of the fact that the
men used the names under which they
are indicted on a few occasions does not
strike counsel for the defense as at all a
sufficient compliance with the demands and
requirements of the law.
No afternoon session of the court was
held though this rule may be changed,
as the court enters upon The trial of the
conspiracy case on its merits. A L..
Wheeler, or j. s. Wheeler, gave bond for
his appearance while he is wanted in the
court, in the sum of $1,500, his father be-
Ing one of the sureties on his bond