The Corvallis times. (Corvallis, Or.) 1888-1909, 1905-04-22
PLEA FULLY ARGUED
COURT WILL ANNOUNCE ITS
DECISION ON ABATEMENT 4
PLEA NEXT MONDAY.

Technically Of Dsfense~It Causes
District Attorney Heney to Re
mark Upon the Contention |
and Causes Bennett to
Become Sarcastic.
Portland, April j The second
day Of argument in the Mitchell
abatement proceedin has been
ended and the question has gone to
Judge Bellinger for his decision,
which will be announced upoa the
opening Of court on Monday next.
At the opening of the morning
session United States District At
torney Heney asked permission to
introduces citations which he had
over looked the day before ia sup
port of his contention tkat the pleas
il abatement had been filed toolaie
to be of effect. The permission was
given, and he cited the Cobban case,
liby Judge Deadly, and the Agnews
case in 165 United States to main
tain his point. He showed that by
these decisions he stood on solid
ground, as In the latter case it had
been held that a plea fled in six
days after the return Of the indict-
ment had been fled at too late a
date and the plea should not be en-
tertained.
| Attorney Bennett In beginning
his argument, like O'day in the Pu-
fter-Watson case, prefaced his re-.
marks by a quotation, and inter-
1spersed them with sarcasm.
Consistency thou art a jewel" !"
he stated at first breath. .sTha 9th
Ter day Mr.. Henay objected 10 the
fling of these pleas IN abatement
lon the ground that taey had been
/ 38tilsd toolate, and ssssw befSse Ills
words are hardly cold IA his mouth
he is objecting because we did not
file them before We were arraigned. !"
| The speaker then proceeded to ar
que his side of the plea of abate-
ment. and occupied the whole of
| the forenoon in discussing the ques-
tions at issue. He Insisted that Mr..
Heney had failed to produce the
promised statutes governing the
procedure in federal courts in the
matter of pleas in abatement. es-
peciaily as regarded the Offering OF
ahdavits, as was done the day pre-
vious by the government attorney
In regard to the citizenship OF Geo.
Giustin and the prejudice of him.
self towards the defendants. Ben
nett insisted that since great part
of the old settlers of ths state had
come from Missouri their descend.
: ents were bred of their disposition
and would like to be shown, rather
. than to take the word of any one
for a thing SO serious In effect Of
the production or nonproduction o
the statutes desired.
Senator Mitchell's attorney ar
gued that the common law and
8 not the statutes of state governed
: the selection of jury by federal
courts. The common law recog.
nized the plea of abatement as the
proper means of testing the legality
of grand jury and upon this fac
the defense based 10 part its claim
The defendant, argued Bennett
had the right to trial by jury or
the questions of fact as raised by
the plea. The irregularity alleged
in the creation of the grand jury
brought out questions of fact, ane
therefore the defense claimed thu
right to try the case by jury, ano
not before the court alone.
1t was also contended by the
speaker that the court hsd no righ
to allow PEBBLES and Buffum to b
sworn on the jury after that body
had been impanneled and that thi
act invalidated the action of the ju
Try,
In tbs afternoon II. S. Wilson
resumed the argument for the de
fense, stating to the court that b
was appearing for Marion R. Biggs
and DR.. Van Gesner. Tnsomuch q
there was slight difference in tn
plea of abatement filed by him fo
his clients he wished to speak OF
the plea. His plea differed In tha
|. there was no allegation of bias Q
prejudice against the descendants o
the part of the district attorney.
Wilson held 1t to be fact we
known that the state practice di
not authorize change in the pane
Of a jury after that panel had bee
sworn, except it be fer the seriou
sickness Of. 4 pember or for sam