The Savannah morning news., 1902-02-18
The PLEAS ALL BAD
GOVERNMENTS DEMURRER SUs-
TANNED ON EVERY GROUND.
THE FIRST ROUND ENDED.
ANY OTHER DECISION WOULD BE
ABHORRENT TO JUSTICE.


Learned Opinion Upon the Issues
InvOlved-Demurrer to the Indict-
ment to be the Next step Taken
by the Accused-Fact That Defen-
dnnts. Suffered No Prejudice by
Manner of JurY's Selection Stress
cd by the Court-Failure to APP
pear and Plead Cost Them the
Right to Make Technical Objcc-
tons.
The first round in the great legal
fight for and against the conviction of
Greene and the Gaynors had been de-
cided by Judge Speer in favor of the
government, upon every ground pre-
scented in the defendants pleas in
abatement and tfaversed in the demur-
rer of the district attorney.
AS indicated in the Morning News
would be done, Judge Speer rendered
his opinion upon the demurrer to the
pleas in abatement yesterday morning.
AS further indicated the opinion fully
upholds and sustains the position of
the government.
The opinion was handed down when
the District Court convened at 10
o'clock yesterday. All the defendants
and their counsel, with the exception
of Hon. Fleming G. duBignon, were
present when court convened, and Mr..
duBignon entered the court while the
decision was being read from the
bench.
Exceptions pendente lite were taken
to the decision of the court on the de-
murrer and Mr. Charlton announced
that the defendants desired to file
demurrer to the indictment. Because
of the illness of Mrs. Marion Erwin,
Mr.. Erwin is detained in Macon, and
on this account, after the decision had
been read, the recess was taken until
this morning 1t is then expected thai
Mr.. Erwin will be in attendance upon
the court and then the demurrer OF
the defendants will be presented and
the arguments begun
The opinion of Judge Speer sets out
in substance the indictment and the
pleas, and then discusses in detail the
various matters alleged in the pleas.
and cites numerous decisions in support
of the conclusions. The more import
ant portions of the opinion are as fol-
lows:
The defense offered at this period of
the case by the persons arraigned is a
plea in abatement, which is a dilatory
plea. 1t is an attempt to annul an in
dictment of the grand jury without any
regard to the question of the guilt or
innocence of the prisoners, or of the
public interest at stake. Pleas of this
character, where it is not made to APP
pear that any unfair prejudice has been
done to the accused are regarded with
great disfavor. 1t is true that the rules
of pleading are much more liberal than
they were at common law, but the more
liberal methods evolved by the advance
of modern jurisprudence have been de-
signed to make effective the trial of a
case on its merits"
In regard to the plea, of the defend
ants that grand jurors from Chatham
and Glynn were eliminated in drawing
the grand jury, the opinion states:
Section S02, r. s., under which the
court in this case selected jurors from
counties other than Chatham and
Glynn, was enacted by the first Con-
gress of the United States, received the
approval of George Washington, and
has been in force more than a hundred
the court in this case
The Jury Properly Drawn.
The first ground is that the names
of persons placed in the jury box were
not placed therein by H. H. King and
Clerk and the Jury Commissioner, but
by the Jury Commissioner and depu-
ty clerk, that they were put in by the
handsfull or punches when they should
have been placed therein alternately
and that this tended to the injury of
the defendants. In the opinion the
judge states that he will take judicial
notice of the order directing H. H.
King and the Jury Commissioner to
make up the jury lists and they will
be presumed to have done their duty in
making up said lists, and continues
1T is not averred that the names in
the jury box did not conform to the
names on the jury list. 1t is averred
that a deputy clerk placed these names
in the jury box. This would not in my
judgment have been a violation of law,
and assuredly would not have disquali-
fled the jurors whose names were
placed in the box provided the clerk
was present, took part in the selection
of the names and supervised the man
ual act of placing the tickets in the
box While the statute on this subject
there is a personal trust imposed by
the act of Congress upon the individ-
ual who is the clerk, yet in the alb
sence of any charge of bad faith or
corrupt motive in the selection of a
jury if he fails to comply with literal
strictness to the provision of the stat
ute yet does substantially comply, his
action will not be regarded as vicious
and unlawful. This is especially true
where no juror is alleged to be disdual-
flied. The name of the deputy clerk is
not mentioned in the plea. 1t is not
alleged that Mr.. King was absent. 1t
is not alleged that he was not i'm the
room taking part with the commits
sioner in the selection of the names
1t is not alleged that the action Of
the deputy clerk was not in the pres
eiee of the clerk, nor is it alleged that
the deputy clerk was of the same DO
litical party with the jury commits.
sloner. 1t does not negative the pre-
sumptions ! Rpe mentioned nor is It
ayerred with the strictness essential
under the rules stated
Impressed with Judges Seal.
The second ground is that the Jury
box was not kept as required by law
continuously in the custody of the
clerk. but that during the month of
November, 1899, was delivered into the
hands of strangers. The opinion states:
This is contradictory of the we'll
known proceedings in this case which
are within the knowledge of the pre-
siding judge and of which he must take
judicial notice. 1t has been the invari-
able practice of the judge to lock the
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