The Montgomery advertiser., 1903-04-09
CONTINUED
 UNTIL, JUNE The Case of Tillman
 Goes Over. WITNESSES ARE ABSENT Counsel for Defense Applies for Postponement. Senator B. R. Tillman Accompanies His Nephew to the Court Room. The Defendant Seems ir r Good Spirits. -. L
 

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 Columbia, S. C., April ,s-The trial of James H. Tillman. former Lieutenant Governor of this State. charged with the murder of Narcisso Gener Gonzales, which was called for the, present session of court. has been continued until June. The continuance was granted this morning by Judge Klugh, upon the ap- plication of counsel for the defense. who claimed that two of the most important witnesses for the prisoner would not be able to be present. The motion was con- tended strongly by the prosecution, who alleged that the defense had not submit ted to the ruling of the court
 Some such move has been anticipated. as yesterdays development in ordering preliminary hearing today had been unexpected. 1t having been thought that the case would be called next Monday as previously announced.
 Witnesses Are Absent. The grounds upon which the continu- ance was requested by the defense were the absence of two witnesses. who. the defense allege, are of great importance to the case. It is stated that one of these witnesses, Capt. A. J. White. is expected to testify that Mir. Gonzales went to the State House before the trag- edy, and inquired for Mir. Tilin1an. stat ing that he had once made Tillman show the white feather and would do 1t again." The defense also state that | Miss Roper, a trained nurse, who claims that she had heard Gonzales bit- | teriy denounce Tillman, could not be present for her testimony today. It was claimed by the defense in asking | for a continuance of the case that they ! could not so to ttial in justice to their | client without these witnesses, and es- | peciaIly as they understood that Miss l Roper would testify to additional threats
 that were not known to the defense at the time when the original affidavit was filed
 upon the former application for bail. Amdavfts were presented to the effect that Captain White was i'll, and was suf-
 fering from partial paralysis and a seri- | ous type of diabetes and that Miss Roper was in the German Memorial Hospital
 New York, and that while she would be
 here for trial, if postponed, that she
 could not be here if the case were press ed now.
 state Makes Objection. The State. by Solicitor Thurmond and | Col Andrew Crawford urged that the de- fense had not compiled with the rule of the court and that there was not suf- fcient showing on which to ask for a
 continuance. It was contended that the defense should have fully developed what | the absent witnesses would have testi-
 fled to. and when the State might, to fur
 ther the trial, agree to the admission of
 the evidence of the absent witnesses. The defense, at the instance of Judge
 KIugh. read the affidavits of Miss Roper Captain White and Robert Holzenbacker as submitted at the application for bail. | and the further statement was made that | Miss Roper had written members of MT. Tillman's family of further threats that | were not known at the time for the affl-
 davit for bail.
 | The State urged that a sufficient show | ing had not, in its opinion, been made for a continuance.
 After full discussion, Judge Klugh rem
 dered his decision continuing the case un- | til next July, and in so doing, he said:
 The Courts Decision. 'The rule of court like any other law
 because 1t is a law authorized by statute
 has to be given a reasonable constitution
 The motion as submitted to the court l
 every respect with the rule as it provides
 that the facts that the witnesses would
 testify to should be incorporated in the
 affidavit submitted upon the motion. In
 that regard and the facts perhaps in | other regards, the motion may not comply
 with the rule, but l think it complies
 substantially now. the constitution of the
 rule like the constitution of any other
 law must be in accordance with common. l . fo HnC xryika
 observation even in criminal cases where
 the facts are set forth .n the affidavit to | which the witnesses if present would tes- | tify, the opposing side to the motion might admit that the witnesses would so swear if put upon the stand before the jury, and some agreement like that fre- quentIy obviates the necessity for con- | tinuance.
 But in a case involving the greater
 issues that can be involved in any case
 that comes before a court of justice that
 practices not binding upon the court The | whole matter indeed Is submitted to the | descretion of the court under the terms of
 the rule. The jury are the sole judges of | the facts in the case. In order to arrive
 at the facts the jury must determine the
 CT edibility of the witnesses. and 1t is not
 fair to a jury, especially in a case in-
 volving grave issues. to ask them to pass upon the credibility of witness who is | not before them.
 So that would be sufficient reason in
 this case, 1t seems to me. to warrant the
 court in granting this motion. In addi- | ton to that counsel states, in his affida- vit in reference to one of these witnesses | where attendance was expected and
 whose absence at this time. the affidavit states, was unknown to deponent, would
 testify to matters more thoroughly that
 come within the privilege of deponent.
 Other Reasons Satisfactory.
 Satisfactory reason is given why the additional matters to which the testimony would be addressed are not set forth ful-
 ly in the affidavit. to which counsel has
 not had the opportunity to confer with | the witnesses; that the witnesses absence
 has occurred since the affidavit, to which
 reference was made was given, and the
 reasons given why the additional facts should testify are not set forth must be considered as satisfactory.
 ''The sherift's return shows the witness