The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-12-20

Guiding the work of the term handed
down a. number Of opinions yesterday
and still Others will be filed ON Mon
dav. 1t is expected that the court
will before it adjourns have filed lts
opinion in every case argued before IL
during the term. leaving the docket
clear Unusually, a number of cases are
carried over undecided 10 the succeed
ing term.
HUFF Gets a New Trial.
Among the appeals decided yester-
day was that of the young man Geo.
Huff who was indicted in Wake Su-
periOr Court for attempted criminal
assault on a Mrs Jones of Fuquay,
and convicted by a jury at the July
term of court of simple assault and
sentenced for thirty days on the roads
IT Will be remembered that Huff's ap-
peal was based chiefly on the ground
mat his sentence to the roads for a
misdemeanor was degrading punish
ment and not permitted by the Con-
stitution. that contention having been
argued to the court by Attorney BNH-
with last week at length.
The opinion, however. which grants
HUFF new trial and is written by
Justice Conner ignores the question
of the constitutionality of the sentence
and upholds the appeal on the ques-
ton of the admissibility or certain
evidence which was ruled out by Judge
Ferguson.
The testimony proposed to be offered
by the defense was that of witness
Arnold and his wife who were in
sight of the prosecutriX and the de-
PENDANT at the time of the alleged
assault, who were ready to swear that
the witness had called to Mrs. Jones
for the purpose of letting her know
that her conduct towards the defend
ant was noticed.
Judge Connor's opinion in part is as
follows:
I'VE think that the testimony was
competent and should have been ad-
mitted. The theory of the defense was
that the prosecutriX consented to all
that was done by the defendant. that
from this point of view and for the
purpose of Contradicing the prosecu-
trix and corroborating the defendants
testimony. the evidence of Arnold ano
his wife was relevant and very ma
terial. If believed by the jury, it fully
sustained the defendants view of the
transaction For the purpose of cor
roborating each other. it was clearly
competent for them to testify as 10
what they said to each other at the
time, and what they did. They were
65 feet from the prosecutrix and tue
defendant. The relations between the
families were friendly. The fact that
the witness called twice to Mrs. Jones
in a loud voice IS feet away. was
clearly competent as tending to show
sufficiently near to render her as
sistance if the defendant was commit
ting an assault upon her.
at is well settled that q witness
who is either impeached or whose tes-
timony is called in question by the
mode of crosse examination or by con-
tradicting testimony. may. for the pur-
pose of sustaining his credibility. tes-
tify to statements made by him IN
respect to the matter, about which he
testifies, at or Immediately after the
alleged transaction. It was material IN
this cause on the part of the defense
to show that Mrs. Jones knew of the
presence of Arnold and his wife at
their home sufficiently nearby to en-
able her to cali for help If assaulted.
When they testified that they were
sitting in the door where they could
see the entire transaction and that for
the purpose of callin~ Mrs. Jones at
tention to their presence Arnold called
her twice, il is competent to show the
state of his mind as explaining his
conduct. We think that what he said
to his wife at the moment, and what
she said to him in respect to the very
the purpose for which it was offered"
Source of Contempt Cases.
Another opinion filed is interesting
as dealing with the case which was
being tried when the trouble arose be-
tween Judge PEBBLES and Col. Nc
Lean, of Lumberton, which is said TO
have caused the Lumberton bar TO
take the action which afterwards re-
suited in the famous contempt cases.
This was the opinion in the case of
State VS.. e. j. Davis ct ais, the de-
PENDANTS being granted a new trial by
reason of an expression of opinion in
case of the defendant Freeman by the
trial Judge and error in the charge TO
the jury, the court holding that when
4 Judge sets forth the argument of the
solicitor, his failure to warn the jury
that they they must acquit the defend
ants unless they are proved guilty be-
yond a reasonable doubt is fatal error
The Davis case is Interesting in it
self. 1t seems that one u. ~. Single
tary had impounded certain hogs be-
longing to one of the defen 1antS the
district being one which has q stock
law. The defendants came to see Sim
gletary and went away without re-
deeming their property That night
Singletary heard voices in the road in
front of his house and upon openinz
his door was fired upon, the sight of
one of his eyes destroyed. The next
morning his pig pen was found to have
been destroyed and the impounded
hogs removed. Pinned to the pen was
q. note to Singletary warning him that
If he impounded any more hogs he
would wake up some morning in bel:
On the trial the State attempted 10
prove by handwriting expert that the
note found was in the same handwrit-
ing as an affidavit of registration filed
by the defendant Freeman on the per-
manent registration roll. The expert
was subjected to a long cross exami-
nation and asked to again explain to
the jury the points of similarity be-
tween the two writings when he re-
piled:
II will not go over to the jury and
point this similarity unless his honor
instructs me to do So
Whereupon the court said:
1.-THE witness has fully explained for
at least an hour to the jury and the
satisfaction of the court the similar
ity of the writing in these papers,"
The words satisfaction of the
court were an indication of the opin-
ion of the trial Judge, says the decis-
ion. which entities the defendant to
new trial.
AS in the Huff case the court in this