The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-10-31
JUROR FALLS SICK
The Old Nick Trial Gets
a Check.
The Case Will be Held Open Till This
Morning. If the Juror Continues
Sick it May be Begun
Anew.
Especial to News and Observer,

Federal court met this morning to
resume the trial of the Old Nick Dis
filling Company case, there was no
jury present. In its place was a
physicians certificate from DR.. j. w.
Long, saying that enc of the jurors,
Mr.. Wilson, of Rockingham county
was confined TO his room at the Tuck
er Hotel. very sick following a chill.
1 hat his temperature was 102 and
that it would be impossible for him
to get QUO of bed during the day.
The exact nature of his disease was
not stated, but he is reported to
have typhoid fever. Upon this an
nouncement Judge Boyd suggested
that counsel confer as to gong on
with the trial with eleven jurors.
After half an hours consultation the
lawyers with the defendants returned
to the court room and through Judge
bynum made the following explana-
ton of their position and situation:
IF your Honor please. after a brief
examination of the authorities re-
lating to the question of the power
of the defendants TO waive trial
by jury. that is, a trial of twelve men
we find we have no such power. 1t
has been expressly decided in this
State, and the practice in this court
confirms somewhat to the practice
meant twelve men, and that no in
dictment can be tried by a less num-
| ber
Nov, we, of course, as your Hon
or, would eXpect-Speak in perfect
frankness to the court, because we
| feel it our duty to state to your Honor
precisely what we find. We are eX-
ceedingly anxious to have this case
/ terminated, and to have this trial pro-
| coed for the reason that it is. in its
vast eXpensiveness, burdensome 70
| our clients, and they are anxious to
have the matter terminated but if
we should undertake to do thing
which the law says we have no power
to do. and there should be verdict
acquitting u.s. there would be nothing
to prevent the United States from
forcing us into another trial; and if
there should be verdict convicting
us. that would also be a nullity.
Judge Boyd said that he appreciat-
ed the difficulty in the case of a fell
ony but had considered the present
Indictment one for misdemeanors.
but he noticed the Supreme court of
North Carolina spoke of criminal
Prosecution He then announced that
the case would be held open until
tomorrow morning. hoping that by
that time the Juror w-~'fi3 be able to
serve. The State VS.. Scruggs, lis, \.
| c., is the case in point.
In case the juror is sick tomorrow
| it is safe to predict that Judge Boyd
| will declare the case a mis-trial, or
der marshal to summon talesmen
| for new jury and begin the trial de-
nvo. Many distant witnesses have been
discharged and gone home but the
| District Attorney could put the rail t
road agent on the stand with his
| books again. and white his week OF
calling out items was being consum-
al. the distant absentees could be
summoned with telegraph subpoenae
and reach here before they were
needed. There are a lot of witnesses
| for the government already here
from distant points several having ar
rived last night from Alabama, Geor-
gia. Texas. and Maryland
There will be no trouble about the
government having enough materi-
al on hand to start a new trial on.
| The trouble might come with another
| Juror made sick.
At nine o'clock Juror Wilson's con-
dition was such that he will possibly
be able to serve as juror Tuesday
What's Up the sleeve?
When Federal Court closed Satur-
| day afternoon until Monday the rail-
road agent at Clemmons, the Old NICK
| Williams shipping point, had just
completed the items on his freight
books He viii next take up the eX-
uross books which he says will prove
much more trying in sorting out the
whiskey packages than the freight
books were. Another installment OF
evidence in the shape of an express
wagon loaded with railroad and ex-
press books from other points arrived
| Friday night and the prediction made
| in this correspondents setting them
| up" in the shape OF an oid-timy
egg nogg, made of the choicest "Old
Nick may not prove so ridiculous as
| it might be supposed. The trouble is
the defendants attorneys are simply
standing pat They are watching
every move, contesting every point,
| fighting every inch of ground, but
| they seem resigned. patient and con-
| tented to let the District Attorney
make out his case without hurrying
| him up or complaining at the tedious
ness of it. Such model patience has
never been seen before. 1t really is
suggestive of there being something
| up the sleeve, but what it can be
nobody has as yet been able to dis
cover or to locate. One conjecture
is that the defendants counsel have
satisfied themselves by looking up the
law of the error of a most important
ruling made by Judge Boyd on
point of admissibility of a certain
form of evidence and another guess
is that the bill of indictments is
mo good" and that should defend
ants be convicted their illegality
would be tested in motion in arrest
of Judgment. or some such legal OBJ
lection. Ii will be reme2o hat
when the railroad agent l = on
the stand, defendants laN s ect-
ed to his looking at the asa% he
gave his testimony. he s,@t t II
was impossible for him e ny
thing about so many shls ,om
memory. He was then pc un-
der exceptions from dt TO
look at the book as he aoh
item, under the ruling II eook
was not in evidence, but was
used to refresh the witne' lee
ton as a memorandum. nee
then, for all these days he cen
calling off each one OF poii
/ letter press items of ship tne
book, giving each item, IRA
pher has made the eXcel the