The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-03-17

| phone after the first conference to the
effect that the advice given me by the
court was not specific and direct"
WAS that not one of the reasons that
caused you to go before the court again 2
81 had already decided to do that, but
| that message stimulated my caution tc
| some extent, but did not diminish my will
| lingness to obey the majority
Taking up the protest and dissenting
opinion of Justice Clark, Mr.. Busbee
asked:
Were those erasures made when yor
handed that paper back to Judge Clark?
mo. l know nothing of when those
erasures were made.
THE COPIES COMPARED.
The Clark copy and the Furches copy
were compared and attention called by
Mr. Busbce to the erasures in the Clark
copy-the witness being called on tc
read them
ibid Justice Clark file a dissenting
opinion in this case at the February
| term?">
Yes"
| Here Mr.. Busbee asked a comparison
| of the language in Judge Clark's note to
Col. Kenan on March 18th and his dis
senting opinion at the February term.
Counsel on the other side wanted to
know whether this was to impeach the
witness or Judge Clark
Mr.. Busbee disclaimed either intention.
Notwithstanding his wild geSticulations
and large exercise of vocal power the
court ruled against him. Mr. Osborne
argued the point at length after the
President had stated his ruling, but to
no effect.
Mr.. Busbee now asked the witness:
Ibid you receive any other instruction
as to whether the former opinion of the
court had ordered the issuance of a
mandamus ard in this connection | ask
you to read what l have marked in
Judge Clarks dissent"
Judge Allen objected to this. He said
all of these opinions were in evidence
and could be argued by counsel, but that
the rule contended for could be spun out
to indefinite length by both sides, and
was an attempt to get in argument be-
fore the time putting it in the mouth
of a witness.
The court ruled out the question, and
Mr.. Busbee continued:
"Ill ask you. Col. Kenan, what is the
difference between an alternative and
peremptory mandamus?''
Question ruled out by the court Mr..
Busbee asked:
"When YOU went to the hotel to see
the judges, did you go at their request?'
mo, of my own accord.
what was the substance of your con
versation with them?'
ION my first visit l saw Chief JUS
tice Faircloth in his room. On my second
visit l saw Judges Furches and Doug
lass together"
WAS this before or after Judge Clark
had warned you about issuing the Writ
After
ALMOST LEGERDEMAIN."
At this point a paper was handed
to the witness and the was asked to
read it. not to the court, but to refresh
his memory.
Counsel for the other side objected and
the paper was ruled out.
Counsel for defendants them said they
would not offer it in evidence. The ma
ture of the paper and its purpose was
revealed by the next question:
'Now, having refreshed your memory
las said to YOU on that occasion?"
To this counsel and managers made a
vigorous protest on the ground that the
witness had never before seen the paper,
that it was not even an original and that
it had been gotten into the hands of the
witness by a species of almost legerde-
1Aafn: that a witness was not permitted
to refresh his memory in any such man
rer.
But Col Kenan was fair with the court
if examining counsel was not. He an
swereG:
II have stated that they told me
ought to issue the mandamus
Now Mr.. Busbee took the paper and
read it as a question, beginning, is not
this what you remember Judge Douglas
to have said to you?"
The witness said it was.
Thereupon counsel for the Managers
said
"Thc paper having been put before the
court in this indirect method. we now
withdraw all objection ii It's be ng regu-
larry put III as evidence, and ask that It
be marked The Sixth Opinion in the
White Case"
Certain rules of the Supreme court in
regard to issuance of mandahus, eXecu-
tions, etc. were now put in as evidence,
and this completed the cross examination
Mai. Guthrie, on redirect examination,
asked whose was the copy Of Judge
Clarks protest that had no erasures. He
said it was that sent to Judge Furches
and the other, the one with the erasures'
was Judge Clark's.
"When was Judge Clark's copy return
ed to him. before or after the order OF
the court for issuance of the mandamus
was made?"
Before
At this point the hour for adjourn
ment Of the court q o'clock was reached
and a recess was taken till o'clock.
Mka AckaHnaaa Qarninr