The news & observer., 1905-06-14


TO argument ON the admissibility of
certain questions and certain evil
dence.
A number of prominent ministers,
summoned for the defense, were on
hand. as was Mr.. w. K. Odell, here
tofore co-defendant with Messrs. Kill
go and Duke. Both DIR. Kilgo and Mr..
Duke We're in attendance during the
greater part of the hearing.
Hard Road for Jury.
The Jury had a hard time yesterday.
They We're marched repeatedly to their
room while counsel had mysterious ar
gument over matters which the jury
could not have understood without re-
course to a law library: and for hours
they sat in dumb patience, looking out
into space, while the precious hours
which moved so slowly drlfted away
on the wings. of talk in which they
could have not had the remotest in
terest. With a ten days seige before
them. in the forced delight of their
own sweet company. the lot of the
Gattis-Kilgo jury is not a pleasant one
To contemplate. Several of them look
ed in their sad and resigned faces the
misery one felt for them when one
looked their way.
The Day i'm Detail.
ing session of the second day, Judge
Moore directed the jury TO retire and
stated that nothing f/d occurred to
put the pamphlet in evidence other
than as to the speech of DR.. kilgo.
published therein:
That the defendants might show by
the witnesses that there was a meet
ing, its purpose or action, but nothing
of the Incidents;
ioIt ole
show that DR.. Kilgo's speech as
therein set out might be shown by the
witnesses to have been fairly reported
in the pamphlet.
Argument Begins.
AS TO whether or not the contents of
the pamphlet could be gotten out by
parole, Colonel Argo addressed the
court contending that the objection
was based on the admissibility of the
record of the trial before the Trustees,
but that the record itself is the best
evidence and could not be varied or
explained by parole testimony.
Judge Winston, replying, stated that
the right was to show the correctness
of the publication, to go into and ex-
plain and show that it was correct.
The mere publication found nobody.
He wanted the evidence of the wit
ness as in mitigation of damages and
showing privilege.
Colonel Argo replied that not mean
ing it tSoffensively, he thought that there
was either a failure to understand the
position of the plaintiff or a deliber-
ate attempt to obscure 1T. The case
quoted by Judge Winston in mitigation
of damages by rumour rose out of the
defendants testimony. We simply
object to their making ii their evil
dence through the mouth of our wit
ness.
Mr.. Watson took the ground that
when evidence had been produced the
burden of showing privilege was on
the defendant. He thought as far
as the witness could go would be to
shows that there was an investigation
that the further testimony should only
come from defendants witnesses.
Judge Moore held that the defend
ants had the right to show by the wit
ness the investigation but nothing of
the contents of the pamphlet other
than the full speech of Dr. Kilgo.
Alcock and Argo.
Governor Aycock was arguing that
pamphlet they had the right to show
what else was in the publication.
Isn't that so ?"
No replied Col. Argo.
II wasn't asking you about it, Col.
Argo; / knew what you'd say"
II want trying To be conspicuous,
replied Col. Argo; I'm no cheap
John"
Governor Aycock went on TO make
a most earnest argument as to the
propriety of admitting the testimony.
The better rule was he declared, to
admit cross examination about any
thing pertaining TO the trial.
The pamphlet. he argued. was no
record. The investigation was not a
judicial proceeding; had it been SO, it
would have been an absolute instead
of a qualified privilege. 1t was no
better than a stengrapher's report of
a trial; that did not become the best
evidence for a future trial. What hap
pened would have to be proved by
word of mouth He declared that it
occupied no better a place than a
note or memorandum to refresh the
memory of witnesses.
Judge Graham referred to the last
trial before Judge Shaw in which they
objected to the introduction of the
pamphlet. and the decision of the
Supreme Court sustaining the objec-
tion of the defendants on that occa-
sion. Now when they tried to intro
duce DR.. Kilgo's speech. the defend
ants attempted to have it all put in.
even though ii had been declared ir-
relevant by the Supreme Court. and
thereby get in the evidence of people
who have never been sworn.
Mr.. ]. N Holding took the position.
i'm reply TO Governor Aycock, that
Trinity College was corporation and
hence its minutes constituted record.
Proceedings could not be proved by
parole.
Judge Moore asked whether the rule
would not be different if the record
was collateral.
What the defense was trying to do,
declared Mr.. Holding, was to get in
the record as substantive evidence; it
constituted their defense.
Both Governor Aycock and Mr..
Holding cited in support of their po-
sitions a number of authorities.
Findings by the Court.
The rulings finally dictated by the
Court were as follows:
That at this stage of trial the PAM
phlet is not in evidence:
That it is competent for defendants
to show by witness on ross-examna-
tion such evidence as tends to prove
the regularity and integrity of the