The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-06-18
NOTHING Is SETTLED UNTIL 1T is
SETTLED RIGHT.

The Gattis- Kilgo-Duke case goes
again to the Supreme Court. The
chief question to be determined by
that tribunal is whether the right of
trial by jury. with all the material evil
dence, is to be fairly continued in
North Carolina when one of the liti-
giants is a millionaire, or whether 1t is
to be confined only to ordinary liti-
giants That is the way it looks to the
lay mind.
In the first trial of the case, in the
Superior Court, the correct principles
of law prevailed land the plaiRtiff-
permitted TO offer evidence just as 9TH
er plaintiffs suing for damage to re-
putation have from time immemorial
been permitted to offer But the Su-
prone Court. only four: Justices sit.
ting. Churches. Montgomery. Douglass
and Cook, now all happily retired to
private life which they .adorn better
than they did the high judicial office.
To which they were accidentally elect
ed by the negro and fusion vote) held
that Mr. Gattis had no right to present
the bulk of the evidence necessary
for the proper presentation of his
case. In the second trial, when only
q meagre portion of his evidence
could get to the jury. Mr.. Gattis again
was given a, verdict. The same Su-
preme Court Judges again set aside
the verdict of the jury and held
error because the Superior Court
Judge had admitted a small portion
of evidence which the Supreme Court
incorrectly held was not admissible. 4
careful reading of those two Supreme
Court decisions discloses the fact that
the court as then constituted regarded
the plaintiff as having no remedy.
claiming the right virtually to deny
trial by jury with all the evidence that
from time out of mind plaintiffs have
been permitted to offer. The decision
almost amounted to taking such trials
out of the hands of jurors and per-
hitting judicial officers to determine
them Independent of the finding of
iuTies.
In the present trial in Wake, which
suddenly terminated by the plaintiffs
taking a non-suit Judge Moore felt
bound by the dangerous and wholly
wrong decision of the Supreme Court
when it was composed of Furches,
Montgomery, Douglass and Cook. The
suggestion of one of the lawyers for
Duke and Kilgo that Judge Moore
!, M
great surgeon who cuts a diseased APP
pendix from the body that the patient
might recover" is a comparison that
does not correctly state the position OF
Judge Moore. or the result of his decis
ion. He felt bound by the decision
of the Supreme Court which
forced him to exclude the bulk of the
evidence relied upon by Mr.. Gattis.
Instead of himself reversing that de-
cision, Judge Moore took the position
of giving the present Supreme Court
the opportunity of affirming or over
ruling the Montgomery decision. In
our judgment he eli.,Al in his position,
for il would have been better for him
to have laid down the law as he con-
ceived it to be, SO that a real trial on
the evidence could have been had and
this case finally settled upon its
merits But, as a judge of lower
court. feeling bound by the de-
cision. he had denied to Mr.. Gattis
the right TO offer much of his evidence
and he held there was not enough evil
dence TO constitute malice, and the
case goes to the Supreme Court where
the real question TO be determined is:
Can this litigation be fairly settled by
a real jury trfaf.s where all the evil