The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-03-17
CASE FOR THE DEFENSE
1OBE OPENED TOMORROW
After Two Days Spent i'm the Introduction of
Evidence the Prosecution Has
M Rested Its Case.
JUDGE BYNUM WILL SPEAK TOMORROW

dates, and the days on which certain
things happened. He said Mr.. Harris
first applied for the writ of mandamus
sometime between October 4th and 10th /;
that he (Harris was given copy of
the judgment on the 4th and sometime
between that and the 10th he came in
and made a verbal demand for a writ of
mandamus. This demand he was required
to put in writing and he left with it a
form for the writ.
The witness Said he gave Chief Justice
Faircloth these papers on the afternoon
of Thursday, the 18th, and that they
were returned to him on the morning of
the 18TH.
did you issue those writs of your own
motion?''
Il issued them by authority of the
court, given on Tuesday afternoon, October
10th, while the court was in conference"
Were all the judges there?'
''They were
State to this court what happened on
that occasion?"
Il went into the court and stated that
the responses given me on former oc
casion were not satisfactory to me, and
that l wished more explicit instructions
in regard to the mandamus. The instruc-
tions that I then received satisfied me
and issued the writ"
What did Judge Furches say"
81 don't remember his language but
Judge Furches was always most pointed
and explicit in his views about this mat
ter. He told me to issue the writ, as
did also Judge Douglas. Three of the
judges told me to issue the writ. Judges
Clark and Montgomery dissented."
What did Judge Clark and Judge
Montgomery say?"
Judge Clark said You know my views.
Judge Montgomery said No Both dis
scented from the advice given by the ma
jority of the court"
WOULDN'T HAVE DONE IT.
Would you have issued those writs
without that Instruction.?
II would not"
After that Friday Q2th) afternoon
meeting did you have an interview with
Judge Clarke"
Il think So
"On the 18th do you remember that
Judge Montgomery said in court, Col.
Kenan, you have no constitutional right
to issue that WRITE? y
Il cannot recall his language exactly
just now. He said, No. and turning
around to me after the advice from the
others, said, That settles it'?'
do you remember Judge Clark telling
you on Friday not to issue the writ till
he had filed dissent"
II do not. but on Saturday morning
paper did come to me from Judge
clark"
A bundle of papers were handed the
witness. He identified them as those sent
him by Judge Clark and filed in his
(Kenans) office.
did you furnish the other members
copies of those papers?'
Il did"
"Where?"
ITO Judge Clark in the Supreme court
building; sent Judge Montgomery his by
a messenger and | myself delivered them
to Chief Justice Faircloth, and Justices
Furches and Douglas in their rooms at
Marlborough"
"At what time of the day."
-Four or five o'clock in the after
noon.
did you see the Judges together at
the Marlborough
81 did not
together at any other time?"
CONSULTED THEM PRIVATELY.
''On Monday l saw Judges Furches and
and Douglas together in the room of one
or the other at the Marlborough, and had
conversation with them in regard to
this matter. l went there for the pur-
pose of ascertaining their position in the
matter and securing their advice. They
both told me it was my duty to issue the
mandamus.
did you go into court again."
Yes, at the next conference. and the
instruction there given me ratified and
confirmed the advice given me out OF
court
You use the word advice did you
consider it advice or Instruction."
Il sought their advice. l thought the
judges responsible for any advice given
the clerk of their court. and the clerk
was responsible for the performance of
that duty"
did you know when you went before
the court on the 18th that Mr.. Harris
had previously been there asking man
damus and the court had refused it?''
YES"
us ii the custom for the clerk to go
before the court for such instruction.?
cit has been a custom"
us it the practice of the court to re-
quire all motions reduced to writing?
1T IS
THE court is in session when in con-
ference. is it not?"
Il presume So
Now counsel returned to the papers
identified by the witness as those sent
him by Judge Clark and he was asked:
State what you know about those pa
pers?"