The Savannah morning news., 1902-02-16
ERWlN'S FINAL SPEECH
GOVERNMENTS POSITION UPHELD
IN GREENE AND GAYNOR CASE.


The fate of the pleas in abatement
filed by the defendants in the Greene
Gaynor trial rests now in the decision
of Judge Speer. The arguments upon
the governments demurrer to these
pleas were concluded yesterday morn
ing. the final speech being made by
District Attorney Erwin.
Five days have been consumed in the
submission of and arguments upon the
first preliminary motion in the case.
raigned and filed their pleas in abate-
ment of the indictment; on Wednesday
the demurrer to the pleas was filed by
the governments counsel; on Thursday
Mr.. Adams made the opening argu-
ment on the demurrer: on Friday
Messrs. Charlton and Rountree spoke
for the defendants, and on yesterday
the concluding argument was made by
the district attorney.
1t is expected that a decision on the
demurrer, which will determine, so far
as the District Court is concerned, the
rendered by Judge Speer on tomorrow
or Tuesday morning. If the demur-
rer is overruled and the pleas in abate-
ment sustained. this will end the case;
if, on the other hand, Judge Speer sus-
tains the demurrer. this will throw
the pleas in abatement out of court.
This will not exhaust by any means
the preliminary motions the defendants
have. up their sleeve. 1t is said the
overrulinS of the pleas in abatement
will be followed by a demurrer to the
Indictment and in the event that this
also is overruled a motion to quash
the indictment will be filed.
The argument of Mr.. Erwin was pre-
ceded yesterday by an incident that
had in it an element of comedy Dur
ing the motion hour Assistant District
Attorney Alexander Akerman presented
to the court an application to have the
Federal prison at Atlanta designated
as the place of confinement for penl-
tentiary prisoners ssntenced from the
Southern District of Georgia. The or
der was granted by Judge Speer.
In the event the defendants in the
present case are finally convicted this
VIII become the place of their incar-
ceration and as the order was read
they were observed to look with some
what wan amusement at each other.
Bad i'm Substance and Form.
! Mr.. Erwin's argument was in large
! part technical discussion of the le-
gal suffieiency of the peas in ,abate-
ment. He contended that they were
SO badly pleaded that they should be
| discarded by the court. that they con-
| tradicted each other, that they i'm
property or loosely stated the con-
| tents of orders that were within the
| courts judicial cogniZance-that the
| demurrer of the government should be
| upheld and the pleas in abatement dis
| allowed, as bad in substance and form.
These were dilatory pleas, said Mr..
Erwin, and as they we're manifestly
and palpably designed, not to advance,
! but to defeat substantial Justice they
should not receive the favor of the
| court. Their effect, if they We're up
! held, would be to turn loose upon the
| community men who have appropriate
| ed wrongfully to their own use enor-
nous sums of money belonging to the
| government
At the instance of the court Mr. Err
win discussed with great strength and
! in much detail the contention of the
government that the deputy clerk of
the court has the right to do all OF
those acts that may be done by the
/ clerk and that, therefore, to draw the
names of the grand jurors and place
these in the box was fully within the
| right and power of the deputy.
II have great difficulty" said the
court, "in accepting your views on this
subject. To me it seems that it was
the purpose of Congress to confide this
power especially to the clerk of the
| court and the jury commissioner. who
it is provided, shall be of opposite po-
| litical faiths. The purpose of Congress
is to preserve the purity of juries and
| it can readily be seen how important
this is in times of factional excite
ment. The deputy clerk of the court
may or may not be of opposite political
faith to the jury commissioner, and
to me ii seems that the selection of
jurors and the organization of the jury
box is a personal trust confided to the
| clerk in his proper person"
Mr.. Erwin continued his argument
on this subject, and 1t was then sug-
gested to him by the court that he
should argue the question whether if
the court should conclude that the duty
of organizing the jury box was func-
ton Of office only to be performed by
the clerk, there were further reasons
why the pleas in abatement should
still not be upheld.
Have waived Their Rights.
"There are two good and sufficient
| sTedSOnS TeJOlIltu lIie ulSNiiCL
I'm the first place, it is not alleged in
these pleas that any prejudice has been
suffered by the defendants or any
wrong done to any one of them be-
cause the deputy clerk acted in this
matter in the stead of the clerk. 1t has
been held in many decisions that pre-
iudice to the defendants rights must
be shown in such cases.
I'm the second place the failure of
these defendants to appear promptly
i'm this court and make their defense to
the Indictment returned against them
has forfeited their right to make for
NAL objections to the indictment"
Mr.. Erwin discussed also the ques-
tions of the public drawing of the
grand jury. the alleged disqualified
ton" of Jurors. from the counties OF
Chatham and Glynn. the fact that the
grand jury was drawn at Macon, in
stead OF at Savannah. and other
questions connected with the case and
raised by the pleas In abatement and
the demurrer OF the government there
TO. In every respect, he contended, the
full requirements OF the law, OF justice
and OF right had been met
II do not concede the contention ~
counsel that these men were not fugi-
tiyes from justice" he concluded. THAT
il n question Of fact. But N his con-
tentlOn ~ correct then he n asking IN
their behalf. not f0r justice, but for
this court 20 lend ifs approving sane.
ton 30 great crime, admitted 10 far
aF THIS pleading lf concerned, on al
legged irregularities from which no pre-
fudlff 90 the HefonNaufe has raaulfad