The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-07-14
A Continuance Asked by
HAYWOOD and Grantee.
Continued from First Page.)

! carry her; and furtnef, InaC ne VIII Ah =
ample opportunity, even now, to carry
his said wife to places even remote, and
then will have sufficient time to obey the
! subpoena. service of which he accepted
| in March of this year, and all other bus
| mess arrangements having already been
nerfected looking to his attendance as a
witness in this trial.
aft Is also submitted that the testimony
/ of the witness, Schmitz, was also taken by
sworn stenographer, and the testimony
| of said Schmitz as thus given, differs wide
ly from the testimony which the defend
ant in his affidavit says that said witness
will give; copy of said examination IS
hereto annexed, marked Exhibit &C. and
made part of this affidavit.
and this affiant further says that the
State is abundantly prepared to impeach
the testimony of the witness SchmitZ. both
in contradiction of his testimony and as
to his character.
"a That it appears from the affidavit
of the defendant that he has had abund-
ant notice of the sickness of the witness
Hocutt, and the contingency of the at
tendance of the witness. Schmltz. so that
the dispositions of these witnesses as con-
templated and allowed by law could have
been taken, and even now, the solicitor IS
willing to waive the notice as required
by law TO be given, in order that their
dispositions may be taken in behalf of the
defendant to be used at this time in his
behalf
''5 That affiant further deposes and
says that the testimony of the witnesses
Hocutt and Schmitz are cumulative and
additional to the facts to be given in evil
dence by other witnesses. who are under
subpoena in behalf of the defendant. and
who were examined in behalf of the de
fendant at the hearing of the aforesaid pc
tition of habeas corpus, to-wlt: Robert
n. Simms and Ned Barnes, copies OF
whose testimony. marked Exhibits ID
and &c" are hereto attabed and made a
part of this affidavit.
And in the course of tie argument at
the hearing of the aforesaid habeas corpus
petition, counsel for the petitioner, Hay
wood, frequently and confidently asserted
that they had abundant and. other testi-
mony to substan.-ate the testimony of
Hocutt and Schmitz. and one of the coun-
sci for said petitioner stated in closing an
argument of great length that they had
other shots in their locker
IS. That this affiant In conclusion says
that this case should be tried at this term
of the court; that it is of great public in
terest, and speedy trial should be had:
that the defendant since the moment al
most of the homicide has had the advant-
age of numerous and able attorneys, and
that for more than a month past. bail
\ 4
self an attorney, has been
enabled to devote his whole time to the
preparation of his defense. that the defend
ant has already geen granted one con
tinuance. and acting or the State in be-
half of public justice, / insist that the
defendant. Ernest Haywood, be tried at
TINS term of the court for the murder
wherewith he stands charged
In connection with his affidavit, Mr.
Daniel read from the record of the Habeas
Corpus proceedings the testimony of Mr..
Hocutt
Speaking of Mr.. Schmitz MIR. Daniel
said that it did not appear at all that the
defense would ever be able to get Mr..
Schmitz here.
Judge PEBBLES interposed to say that they
could get Mr.. Schmitz's deposition
The judge asked if the affidavit of de-
PENDANT stated when it was learned that
Mr.. Schmitz could not attend Col. Argo
said it was on Friday last.
Captain Day asked Mr. Daniel to point
out the discrepancy between their aft
davit and Mr.. Hocutt's testimony.
Mr.. Daniel said it was where the aft
davit said that Hocutt had testified that
Skinner put his hand to his hip as if to
draw weapon. Mr.. Hocutt had not said
this.
Capt Day said that was their argument
and asked Mr. Daniel if he took it seri-
ously
Mr.. Daniel said he supposed he was ex
peeted to take their affidavit seriously.
A few more words and Judge PEBBLES
commanded order in the bar.
Mr.. Daniel then proceeded to read the
testimony of Mr.. Schmitz.
The Judge asked If the prosecution wai
willing to accept the truth of the testi
mony. Mr. Daniel said they were wilEni
to accept it as the stenographic report
but not as to its being true.
Mr.. Gillian then addressed the cour
against the motion to continue, sayin!
that all the while, even within the las
few days counsel for defense had sal,
they were ready to go on with the case a
this term of court
The judge said that was not BEIGE TIN
court, what the lawyers may or may no
have said. Only the statements in tn
affidavit were before the court, and i
certainly would be unheard of to compe
man with typhoid fever to undergo tn
ordeal of giving testimony or of having
his deposition taken.
Mr. Gillian said they should ask tina
the court have Mr.. Hocutt examined by
physician as to his condition. This h
asked in justice to his position, and with
out any intention to reflect upon any one
The judge asked if Mr.. Gillian admitte
that Mr.. Hocutt had typhoid fever. Nj
, Gillian said he did not, that the first in
, timation they had had of his illness wa
when the affidavit of the defendant wa
read.
Judge PEBBLES asked for some authorit,
by which an affidavit could be questone
as to its truth when there was no evidene
, to the contrary. The judge went on t
say that the custom of practice was t
: accept affidavits as true.
Mr.. Gillian admitted that there ha'
grown up.a usage that the affidavit for