The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-06-14

cases overrullng them have been cited IN
Herndon's case. and that the cases m
Mississippi South Carolina, Alabama and
Everywhere else have been overruled? The
latest case that he has cited that | can
find was in 1862, about the beginning OF
the war. Does he not know that the
Aaron Burr case has been overruled by
the jefferson Davis case in Burr's case,
Judge Marshall following the rule, says,
have not known bail to be applied Tor
in such cases. In Davis case the court
said he was entitled to bail, because from
the evidence adduced in this case as shown
by his public acts as President OF the
Confederate States of America, it failed
to find that, as matter OF law, he was
guilty Of treason, though he has been IN
dicted by grand jury Did you know
that overruled Burr's ease? The cases
that he states have been bundled up and
filed away among the records OF old us
ages and curious antiquities. The State $
counsel might be held guilty of conspiracy
to produce legal revolution AS l un-
derstand, Judge Brown now has an APP
plication for bail under advisement IN
Il case in which five or six men in the
town Of Wilson broke in a room and slew
a man. my brother Woodland appears as
one of the leading counsel for the petit
TONERS IN that case So their contention
is not only not sustained by legal pre-
cepts but it is not sustained by example
the example of my brother Woodland.
Now we say that a rule of proof has been
prescribed by the court and / have shown
lit by citations to the Encyclopedia of
Law and Practice 5, PIP. 64-67, and the
Encyclopedia OF Law 3, PIP. 669-673. From
these authorities it appears that you have
the power to admit to bail in your dis
erection, which is legal discretion under
section 1914 Of The Code, which / have
already read to your Honors.
Now what degree of proof would you
require in order to admit to bail? I'm
der Herndon's case a presumption arises
in favor Of the action of the grand jury:
they say I am not right as to the pre-
sumption. l state what Mr.. Thayer says
i'm his preliminary Treatise on Evidence,
who is, believe, the most philosophical
writer upon evidence. cite you also what
the 18th edition of Greenleaf says: Green.
Ev. /, p. 1902 Now here is what they
say:
Presumption is neither evidence, nor
proof. but is merely assumption "a TAX
ing for granted, an admission for the
purpose of argument In other words it
is simply a rule, which determines who
shah begin proof
''The essential character and operation
of presumptions, is to throw upon the
party against whom they work, the duty
of going forward with the evidence
ut is one of the commonest errors to
misapprehend the scope and limitations
of ordinary rules and maXims Of pre-
sumptions. They are, as we have seen,
merely prima facie precepts. and they
presuppose only certain specific and ex-
pressed fact: and if they be such as have
evidential bearing they make the pre-
sumption inapplicable. All is then turned
into an ordinary question of evidence. and
the two or three general facts presup-
posed in the rule of presumption take
their place with the rest and operate with
their own natural force as part of the
total mass of probative natter
Here it is admitted that biz has been
found by the grand jury. 1t is presumed
that the grand jury acted correctly. 1t
is subject. however. to be shown to the
contrary, and that may be established by
facts contrary to the inferred facts by
contrary testimony. This is a rebuttal.
We assume in our opposition to the ac-
ton of the grand jury that the court will
presume that they acted correctly; but ex-
parte. You have heard evidence. The
policy of the law is against exparte trials
the law of the land demands that every
man shall be heard and every man shall
have an opportunity to face his accuser
and his witnesses with his own witnesses.
presume that you acted correctly, says
the court, but your judgment may be err
roneous. You may not have oicited all
the evidence from the witnesses; they may
have been interested witnesses. and may
have suppressed some facts and stated
only those facts that warranted your ac-
ton. Then /, says the courts, make from
the fact that you found this bill the
simple assumption of the fact that you
acted correctly, but that is simply prima
facie presumption which the law asserts
in hmine: and if the defendant attacks
your proceedings say to him, l assume
that they are right, but the defendant
may proceed to show that they are not
right. He says, l have shown that the
grand jury did not act properly in this
matter. Then this assumed fact is merged
in the great mass of evidence adduced,
and has no more force than any other cir
cumstance.
Such then is the effect and weight of
that presumption, nothing more,
Now then the only question here is
whether this defendant is guilty of MUIR
der in the first degree or whether there is
Iany evidence of reconciliation which would
induce a reasonably prudent and fair man
to find him guilty Of murder in the first
degree In other words, is the doubt not
in his favor; can there be doubt that if
he were found guilty of murder in the
first degree upon this evidence that if a
jury should find him guilty on this evil
dence, you would not allow that verdict
to stand, would your Honors do it? Not
for moment. There is not a scintilla OF
evidence Of generalization. There is not a
particle of evidence here that there was
reconciliation or deliberation in this mat
ter. None. It is unnecessary for me to
define to your Honofs what generalization
lls because you have had it before you at
the last three terms of court, in three most