The times. [volume] (Washington [D.C.]) 1897-1901, 1900-07-12
A CONTINUANCE REFUSED
Action of the Court in the Goebel
Conspiracy Case.
Judge Cnntrill Rules Tint the De-
fence Has Not shown Diligence in
m Effort to Secure Witncsscs-At-
tnchlncnts Issued RcturnnbIe Tues
day-At Work Empnneiing the Jury

GEORGETOWN. Ky. July 1.-THE
crucial point in the Powers trial came this
morning when Judge Cantrill overruled
the molten of the defence for a continu-
ance. When court met Commonwealth
Attorney Franklin asked to be heard on
the affidavit for a continuance. He said:
In April this case was set for trial
July 9, yet not until June 25 were any
subpoenas issued or asked for witnesses by
the defence, and this looks like due dill
gence has not been used in securing the
attendance of witnesses whose absence is
now complained Of. The affidavit con-
tanned statements as to what the testi-
mcny OF only fourteen of the eighty four
absent witnesses would be, and nothing
is said as to what the other seventy would
say. OF these fourteen, w. ]. Davidson IS
in the State Of Washington, George Hemp
hill is in the city Of Washington, A. c.
Roberts is on board a Government steamer
bound from New York to San Francisco.
ard Ben Rowe is In Indiana, all four be-
yond the Jurisdiction of this court OF
the other ten We are willing to admit as
true the statements as to what j. NJ.
Hargrove. R. c. Blarford. E. P. Bullock.
and John Burke will testify to, and the
Commonwealth insists on trial now"
For the defence, Ex-Governor Brown
said:
This is In effect O continuance OF tie
last term of the Franklin Circuit Court,
and is not term succeeding the one at
which the Indictment was found, as con-
templated by the code in reference to TAX
ing as true the statements of an affidavit as
to absent witnesses. The law throws the
mantle OF innocence about man until he
is proven guilty. and II the court has any
doubt about the advisability of granting
continuance he should solve the doubt in
favor OF the defendant. We did not state
in the affidavit what 20 OF the absent wit
nesses would swear, because We have had
no opportunity to consult with them and
carnot know the nature of their testimony
except from hearsay."
He read from several decisions as to the
necessity OF having the witnesses present
and concluded by saying:
The witnesses for the Commonwealth
receive their per diem and mileage under
the law. while our witnesses. most Of whom
are poor, have to pay all their own ex-
penses. and then 100000 has been set aside
to pay the expenses Of this prosecution"
Franklin responded to the latter part OF
Browns remarks by saying that large
fund had been raised for the defence, as
was evidenced by the able array of attor-
neys on that side. and he thought with this
fund at the command few more wit
nesses could have been present.
After examining the subpoenas and re-
turns thereon. Judge Cantrill said:
Il find that twentysi1 out of III SUD-
poenas have not been served and five of
3 f-xan --civ ,rt rf hn n q
There was no effort made by the defence
to secure the presence of these witnesses
till June "a or %. although they have had
since May to do so, and I cannot hold
that due diligence has been exercised,
the sherlffs Of the various coun-
ties did use due diligence after the SUBJ
poenas came to their hands.
Il find that in one county subpoenas for
fifteen witnesses were not issued until
June %. and consequently have not been
This was certainly not due dill
gence as contemplated by law. 1 must
oyerrule the motion for a continuance.
'The court will have attachments issued
for absent witnesses returnable on Tues
day and will appoint a special bailif to
serve them il the defence wishes
The Judge then decided ths: this was
a continuation Of the Franklin Circuit
Court and that If the attachments failed
to bring the absentees. the statements as
to what their testimony would be could
be read as depositions, but not accepted as
true as would be the case were they read
at the same term OF court at which the
Indictment was returned.
The defence intimated they thought next
Tuesday was too short time to have
all the attachments served and Judge
Cantrill said he had only suggested that
day and would give further time If neces-
sary. The defence asked and was granted
till o'clock to prepare additional afii-
1avits
At the afternoon session Of the court the
defence demurred 10 the Indictment be-
cause it did not state who was the princi-
pal in the crime or give the name OF the
other persons unknown to the grand
Jury
Judge Cantrill overruled the demurrer
md then the defence offered a pardon for
Powers. signed by w. S. Taylor as a bar |
% further prosecution. The pardon was
-uled out on the ground that the Supreme
Court had decided that Taylor was not
Governor on March 10. the day the pardon |
vas dated. The defence then filed an af- |
idavit stating that a number OF Powers |
witnesses were too poor to pay their way
o the trial and asked that they be sum- |
noned by the Commonwealth. so they |
might be paid. The court granted the re- |
quest.
The selection Of Jury then began. and |
tut Of nineteen called only six were tenn
oorarily accepted, and these are subject |
o peremptory challenge by either side
rhe judge ordered special venire of 100 |
nen summoned by tomorrow morning. out |
# which to select jury. OF the six men
selected as jurymen five are |
Democrats and one Republican.
he jury. and the defence has until next
Tuesday to serve attachments on absent |
witnesses and bring them here.