The news & observer., 1901-10-30
LOUIS COUNCIL TO DIE
Judge Clark Writing the Opinion Up
holds Prec, dent for 100 Years.
JNDGE DOUGLAS DisstN EO fF0M COURT
Relief to BE- Had From tx cutivs in Criminal
Cases, Where investigation Can be Made
That The Court Has no Author
iiy 10 Max.

The Supreme court decided yesterday
that it would not grant a rehearing in
criminal case
Judge Clark wrote the opinion of the
court, which upholds precedent in the
highest tribunal of the State for the
past 100 years. Justice Douglas filed a
dissenting opinion.
The decision was made in the case of
Louis Council, the condemned negro
rapist of Cumberland, who will now have
to pay the death penalty.
Council, it will be recalled. was con-
victed of rape in Cumberland Superior
court and sentenced to die. The Supreme
court affirmed this decision. Then there
was an effort to get the Governor to COM
mute the death penalty. Failing in this
the attorneys for Council brought the
matter before Judge Douglas, who placed
the case on the docket, so that the ques-
tion of a re-hearing before the court
might be argued.
While a re-hearing in civil eases be-
fore the Supreme court is not an unusual
occurrence, it has ben the written and
unwritten custom that there could not be
a hearing in a criminal case.
The Attorney General moved to dismiss
the petition to re-hear on the ground
that by uniform practice of the court,
observed from its beginning till now, Pc
titions to re-hear are not allowable in
criminal actions. The court holds that
IAN appeal to this court is right, not so
as to a petition to re-hear. Herndon VS..
Insurance Company, Ill N. c. 1884; Colo
mon B. Bates 11S N. c. 321 which IS an
appeal from this court to itself and only
allowable ex-necessitable hen there Is
no other possible belief from its judg-
ment In criminal actions, there is the
fullest power vested in the executive, not
only to relieve from a Judgment of this
count as could be done by us upon a re-
hearing, but the facts can be inquired
into as the court could not do, and con-
siderations of equity and mercy may have
weight which can not be presented on
a re-hearing in a court.
If the Acourt were not bound by CEN
tury of legislative acquiescence as we'll
as judicial construction and viewed as a
new question the court might well pause
before assuming jurisdiction over the
strenuous application of defendants in
criminal actions after the highest court
has decided against them 1t is the con-
current testimony of successive Governors
that such applications have been the
most troublesome matters they have had
TO deal with, yet they have means of in
vestigation and examination and leisure
which is denied to this court.
In this very case the suspension Of ex-
ecutive has been by the courtesy of the
Governor in granting respite under his
prerogative, and not by virtue of the
order of a member of this court. That
"a Judge of this court could not issue his
order to the Governor commanding him
not to proceed Is conclusive that we have
no power over the matter after the cer-
tificate of the opinion of this court has
gone to him. The matter has thus gone
into his hands, and the public history OF
this case shows that the executive has
fully and carefully investigated all
claims made by leniency. Farther ac-
tion Is left by the constitution and laws
with him. No criticism is intended upon
the action of the members of the court,
who granted the order for q re-hearing
for it was desirable that this point
should be squarely presented and finally
set at rest, which might as well be done
In this case as another.