The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-07-14
Leads all North Carolina Dailies i'm News and G

ent term of court, and especially to go
during this excessive heat, through the
strain and excitement attendant upon tes-
tifying as a witness in an important trial
wv. l. RoYSTER, M. D."
MIR. SCHMITZ'S AFFIDAVIT.
Bernard A. Schmitz, of No. 11O East
Lexington street, city of Baltimore, Mary
land, being duly sworn, maketh oath as
follows:
That when he was in Raleigh, N. c., in
the month of March last, he accepted ser
vice of subpoena as witness for the
defendant in the State VS.. Ernest Hay
wood. That he intended to be in Raleigh
in answer to this subpoena when the case
was called for trial at the July term 1903
of Wake Superior Court, and had made all
his business arrangements necessary to
insure his attendance That since he made
these arrangements his wife, who has been
afflicted with pulmonary tuberculosis for
year or more, has been quite i'll of late
That owing to her present i'll health and
upon the advice of DR.. Geo. Wellsher,
physician, Mr.. Schmitz is compelled to re-
move his wife to another climate, and i'm
mediately, and because of this condition
of his wife, and the necessity of his I'M
mediate departure from Baltimore with
her, it will be absolutely impossible for
bim to be in attendance on Wake Supe-
rior Court at the July term, 1903. That
he will attend at the trial of Mr.. Haywood
whenever it is possible for him to leave his
home for the purpose, and that he will not
let anything other than the dangerous
sickness of some member of his immediate
family to keep him away.
(Signed) "BERNARD A. SCHMITZ."
When the reading of the affidavit was
concluded, Solicitor Daniel said this was
the first intimation counsel for the pros
ecution had had that continuance would
be asked At the habeas corpus hearing
counsel for the defendant had expressed
themselves as being so confident that the
other side had certainly expected them to
be ready for trial at this term of court.
| Moreover, the last statement Of counsel
| for the defendant had been that they had
more shots in the locker The progecu-
tion would like to have little time to ex-
anime the affidavit, and compare certain
statements therein with the testimony as
taken by the sworn stenographers.
Judge PEBBLES offered to give them time
until this morning, but Mr.. Daniel said
they could be ready by the afternoon ses-
sion, consequently the hearing was post
poned until the afternoon session of court.
When court re-convened at three
O'Clock, counsel for the prosecution We're
not in court, and while waiting for them,
Judge PEBBLES took up several minor
cases. Among these was a case for car
ryIng a concealed weapon. against j. HUI
bert Ferran. 1t seemed that during Car
nival week Ferrall went out with the
boys one night and was seen buying cart
ridges for his revolver, and reported. The
judgment of the court was fine of $40 90
and costs.
In the case against Walter Sewell, Jr.,
the colored boy who on the Fourth of
July cut Walter Harris, the colored black
smith, with pocket knife, the judge fined
Sewell $1.00 and costs
| Upon the return of counsel to the room.
Solicitor Daniel stated that they had
counter affidavit to file.
Col .Argo contended that in cases like
this no counter affidavit was allowed, and
he called for the acts of 1885 to show this.
| The Judge ruled that the counter
affidavit could not be filed, but he SAID
he would be glad to hear what it was, and
Mr.. Daniel read the paper offered as fol
| lows:
Il. That the Bill of Indictment against
the defendant, Ernest Haywood, was found
at the March Term, 1903, of this court
for murder, and the case came on regu-
larly for trial at that term, and that at
that term the State announced its readi-
ness for trial: that t.e cause was finally
continued upon application and affidavit
of the defendant, and that in his affidavit
it was alleged by the defendant that he
was unable to proceed to trial by reason
OF the absence OF certain witnesses, to-
wit: Philip Busbee, John II. Hammit and
John S. Stump, and certain other witness
es whom they expected to find from GER
tain information in their possession.
copy OF said affidavit is herewith filed
and made part of this affidavit, marked
Exhibit "A"
THAT at the hearing of the habeas cor
pus petition on the 2Sth of May, 1903, not
one of the above named witnesses, whose
absence was alleged as cause of continu-
ance at the March term, 1903, of this court
was examined, and, as this affiant is in
formed and believes. not one of the said
/
court under its subpoena.
80 That in answer to the affidavit Of
the defendant of this date with respect
to the absence of the witness Charles b
Hocutt, this affiant says that he is not
advised except as in the affidavit and ex-
hibits thereto attached, of the defendant
that the said witness is too i'll to attend
the court; and further answering said affi-
davlt, this affiant says that at the hearing
OF the habeas corpus petition above re-
terred to, the said witness, Charles B.
Hocutt was examined as witnes in be-
half OF the defendant, and his testimony
was taken down by sworn stenographer.
under the supervision of the court, and
the testimony of said Hocutt as thus
given differs widely from the testimony
which the defendant in his affidavit saws
that this witness will give. A copy of said
examination is herto annexed, marked
Exhibit "B," and made a part of this af-
fldavit.