The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-11-27
Leadsal NorthC Carolina Daiies Jews and CircuNSon

for hm-but his statement as to what
he did say was to the same effect, and
Judge Clark said that on his own state
ment Mr.. Jurney was disqualified
The witness said Judge Clark expressed
a willingness to have as jurors those who
had not formed and expressed an opin-
ion, but he didn't think the others were
competent jurors. Mr.. Webster also told
of the change in the issues submitted.
"This change" he said, left out all
reference to DR.. Kilgos record in North
Carolina. Judge Clark opposed the
change, but Dr. Kilgo, the defendant,
and DR.. Oglesby favored it. Judge Clark
appealed to the chair and the chairman,
Mr.. Southgate decided with him. There
upon DR.. Kilgo appealed from the decis-
ion and the chair was overruled.
EXCLUSION OF EVIDENCE.
"Was any evidence in regard to Dr.
Kilgo's record in North Carolina ex-
cluded?"
Il understood that Judge Clark had
got large number of depositions on this
point They were excluded. Also l was
not allowed to testify on that point Af-
ter / had been rendered as a witness
and refused by the prosecutor, [ was, on
motion OF DR.. Kilgo, excluded from the
room. Then I Nancy Hanked it to the
West Durham depot
Mr.. Webster said that when Mr.. Beck
with was put on the stand DR.. Kilgo call
ed out from him (Beckwith) certain de-
clarations of people in South Carolina in
his (Kilgo's) favor, and then when Mr..
Beckwith started to give the other side
declarations that he had heard against
him) DR.. Kilgo objected. Judge Clark
appealed to the chair and was sustained.
DR.. Kilgo protested and the chair was
over-ruled.
What was DR.. Kilgo's manner toward
Mr.. CATFISH
"It was imperious and offensive. 1t
would have been to me-"
what sort of spirit prevailed in the
meeting?"
well, the thing took turn that the
brethren were hardly prepared for, and
they were stirred up, excited and some
times they all wanted to talk at the same
time.
On cross examination the witness said
when the representative of the News and
Observer sought admission Profs. Flow
ers and Bassett closed the door in his
face and held it until DR.. Kilgo went and
locked it.
Judge Winston: 'You quote what Mr.
Jurney said. Was he not raising money
to build a building for Trinity"
Mr.. Webster: "He was financial agent
or something of that sort, rattling
around trying to get up money"
Judge Winston tried to prove the char
acter of Mr.. A. P. Tyer by this witness.
h,.f %I,0 i
He started to say he was a thick and
thin Duke man. but Judge Winston OBJ
jected and stopped him.
do you know the character of John
N. Cole?'
Cant say that I do
DO you know the character of o. w
CARR"
"Oh he's come day go day God send
Sunday sort of man. I've never heard any
charge against his moral character, but
he's not a strong man"
With this Judge Winston stopped trying
to prove character by Mr.. Webster.
MOTION TO DISMISS THE CASE.
At this point the plaintiff rested his
case, and the defendant moved to dis
miss the case on insufficiency of the evil
dence.
Pending discussion of this motion by
attorneys the jury was sent from the
court room. Mr.. Burton, for the defense.
argued the motion at length, contending
that the publication was privileged one.
and that to make it actionable express
malice that is malice, in fact, against
the plaintiff, as distinguished from legal
malice must be proved. Such malice, he
commended n1d
all the circumstances of the publication
rebutted the presumption of malice.
There must be proved Mr. Burton add
ed, "a design to wantonly injure the
plaintiff. There is no scintilla of evil
dence to show malice"
Judge Winston argued to the same eff
feet, citing an English authority for his
position, and adding: "These defendants
are absolutely protected unless express
malice is shown. They cannot be touched
because there is no personal i'll will or
grudge shown towards this plaintiff"
Mr.. Hicks, for the defense, also read an
authority.
MOTION TO DISMISS OVERRULED.
On conclusion of his argument. the court
overruled the motion to dismiss, Judge
Hoke saying: MY understanding of the
law is that if a man publishes a thing
knowing it to be false it is a malicious
utterance whether it be privileged or not.
1t is matter for the jury, and l shall
overrule the motion to DISMISS
The defense then gave notice of appeal
under chapter 131. Acts of 1890, which
amends chapter 103, Acts of 1897, and pro-
vides that in civil cases if motion TO
dismiss for insufficiency of evidence is
refused, the defendant may except and
appeal, or he may thereupon introduce
his evidence just as if he had not made
the motion"
Judge Hoke read the Acts referred to
and said ut is the law as here writ
ten, but it was not so intended by the
Legislature. 1t seems though to have
been so designed by the draughtsman or
some one fer whom he was working"
Judge Winston, who made the motion:
Rather by some one, who was working
him. 0aughtcr).
Judge Hoke: Gentlemen, this Act is
confusing. / don't think the Legislature
intended to pass it. l am going to try
this case and take the jury's verdict on
it,
At this point the defense asked an hour
and half for conference and a recess