The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-04-03

how he had been arrested on the bench
warrant and hurried to Raleigh under pro
test, found his only counsel under sum-
mons as witness against him, how he
had no time 10 see counsel, how he was
not allowed to waive examination, how
Col. John w. Hinsdale was called as q
witness, land under fright or fear of con-
tempt of court, and in the absence of his
client, X. $. Finch, was made to divulge
TIE entire conversation had with him,
how latter The hearing and the refusal of
the personal constitutional privilege al
lowed to each and every American citi-
zen,' the Chief Justice had required
bond of s2,Cc0, how affiant had seen Gov
ernor Aycock and Judge Robinson in con
versation near the window during the
trial, and how Judge Robinson had told
him and counsel that Gov Aycock had
said that if McBee would resign the re-
ceiversEip and if Finch would withdraw
bis complaint, the prosecution would be
discontinued, and various other matters
about the suit in the Federal Court, that
1t was withdrawn under duress of criminal
prosecution and the receivershiD absolyed
under duress, and so forth.
(After the argument was over, this af-
Col. Hinsdale and in under fear of con
tempt of court, and in the absence of his
client, X. s. Finch, was made to testify
to the entire conversation had with him;
and with other witnesses, ana required to
give evidence of their knowledge OF the
/ case)
| Judge Brown asked to see this last af-
| fidavit, and advised counsel to strike out
words about the refusal of the personel
constitutional privilege allowed to every
American citizen. as it was not fitting to
criticize the acts of the highest judicial Of
| fcer in the State, the Chief Justice of the
| Supreme Court.
Then Col. Argo explained that the evil
dence rs regards the condition of the road
was needed to show that the appointment
OF receiver was not to the injury Of any
stocllholder
Judge Brown said he understood then
| that the object was to show that even if
there had been n confederation or combi-
nation, it was not to injure anyone.
Col. Argo said that was it exactly, there
was no unlawful act as the object.
Then the Judge asked on what grounds
they asked to quash the Indictment.
Colonel Argo then argued that in order
| TO constitute a combination unlawful
and hence a conspiracy, there must be
the means which would give character 10
the proceeding as unlawful There must
be some unlawful act as the ultimate OBJ
ject OF the combination. The means must
be shown. Where a crime is charged as
the result of the combination. the means
need not be specified, but where the re-
tsuit would he only injurious, then the
means must be set out. IN this indct-
ment no crime VS. charged as the result
of the combination. In support of his
contention Colonel Argo cited Mclean,
Sec. 975, and Greenleaf. sections 90 and
%. 18th edition.
Judge Brown said II do not under
stand that the charge here is that the
conspiracy was to do any indictable act.
Colonel Argo: ''No, not at all. If it
was any wrong at all. it was a civil wrong
that was the object" IN the last two
counts, declared Colonel Argo, not even
civil wrong was charged unless the
means were such as to show it. The bill.
continued Colonel Argo, was an unusual
one, showing deficiency, a noble def
cheney, whether by design or nor he could
not tell. There was the impress OF
master hand in it, declared Colonel Argo,
in concluding.
| General Gilmer addressed himself TO the
question of the validity OF the bill of in
dctment. Ee submitted that it was
broad enough in it's terms to direct the
conspiracy at the Board of Directors CT
| the road. These eight directors represent
ed the sovereignty of the State, and were
public officers to the extent that a con
spiracy to prevent them from the dis
charge of their duty was conspiracy to
60 an unlawful act.
| Judge Brown asked if he understood
| that when the State bought stock in
corporation, it had any privilege other
| than as a private stakeholder
General Gilmer argued that whenever
the State had stock in corporation t, at
was Quasi public in its nature. it was
on different basis from that of a private
stakeholder.
Judge Brown asked if the State should
buy stock in a cotton mill. if it would
have any special privileges.
General Gimer submitted that that was
not good illustration. as railroad was
in the nature of public utility and that
the officials had the case if the States
| property.
| General Gilmer then cited the English
law, FedGlng from LORD Mansfield to the
effect that the means were rot necessary
IN cases of conspiracy. and that the act
| itself as 4 result Of the combination was
not natural. 1t was the conspiracy that
was unlawful. Then he read from Chief
Justice Abbott that the gist of the crime
was the conspiracy itself.
| Then State vs.. Cardoza 18th s. c.. was
quoted, as bearing directly on this case.
in that case there was q conspiracy to
take cut OF the possession of the State of
South Carolina a sum of 81 ,000 In the
Indictment there. in the first place there
was the allegation Of conspiracy stated
without reference to the specific means.
In the opinion there it is stated that a
conspiracy to defraud the State of money
or property Is indictable as such, even
though the means thereto are not speci-
fled. As to a bill of indictment it was
only necessary to inform the accuses as
to what he is charged with.
In the case of State VS.. Brady Genera,
Gilmer called attention to the fact tina,
in that case State VS.. Echos was c,te1
with approval, and that there it was sneci.
hcally stated that in charge Of con
TSOiracv tn IntIro anvaoo IN