Arizona republican., 1910-05-16

| tree for their subsequent inspection
 and oversight According to the law ! he claimed that this arrangement on the part of the commission was eXtor | ton and he intimated that the payment {, of q note given by his client. Fleming | to the entomologist of the commission would be contested. Judge Kibbey declared that the prosecution had no: 1 introduced particleof evidence I showing that the trees on, MT. Elem
 inSs property were Infested by mealy bugs. He pointed out that the law spe- cified that the inspector of the com
 mission could destroy. insects but did not say that property could be de stroyed The entrance of the officers
 of the commission upon the Fleming property was illegal. witnesses ,had shown that the trees pulled up were a part of a lawfully released shipment
 and Stewart was acting wholly within his right in resisting the complainant. Judge Kibbey was followed by MT. Bennett, who finished the argument for the defense. Mir. Bennett spoke at considerable length. He argued that
 the commission and its officers had 1 not acted in good faith in their deal i ings with Mir. Fleming. While MT. I Fleming had admittedly removed un-
 released trees from the packing house l it was excusable on the ground that | the commission had violated it's agree | ment with him and had not acted in good faith. He pointed out that ac-
 cording to MT. Fleming's testimony the
 entomologist of the commission had | secured note for s425 and immedi- ately thereafter had condemned an en- ! tire carload of trees. The prosecution had not shown that there was any in- festation at Fleming's nursery. One of | the Kale brothers. who had ha fifteen years experience as a nurseryman in Florida. testified that the trees were ! free from pests. The insects were not there and could not live here,' Mir. f Bennett declared. He introduced cita- tions of court rulings to the effect that ! the testimony of men of practical eX- perienced was as valuable as that of | so called experts. Mir. Bennett con- l tended that the officers were acting without warrant in law and did so at their peril. He stated that he himself assumed the responsibility Of direct ing Stewart to resist the destruction of the trees. He urged the court to consider the effect on the reputation of the defendant if he were bound over to the grand jury on felony charge. No evidence had been introduced to show that unlawful resistance had been made. Mir. Bennett stated it had been his conviction and still was that the court should have dismissed the case after hearing the evidence of the prose- cution.
 Assistant District Attorney Lyman
 concluded the arguments. He stated
 that he was not interested in saving any ones face. If the horticultural
 commission had failed in its attempt
 to execute a defective law it did not
 personally interest him. In the par
 ticuIar case before him the horticul-
 tural law notwithstanding it's defects.
 clearly covered the case. A carload of
 trees had been found and declared in
 Tested with dangerous pest-no cert-
 ficate of release had been granted. The
 trees became eontraband goods sub-
 ject to the provisions of the law, which
 states that such infested shipment
 shall be immediately sent out of the
 territory or destroyed. at the option of
 the owner. owners or agents. and at
 his or their expense" The removal of
 condemned trees to another point in
 the territory does not change their
 status. The law follows them and they
 remain contraband goods. The con-
 fusion of few worthless trees with
 the contraband goods could not prevent
 the operation of the law. Moreover, the
 only evidence introduced to show that
 the particular trees pulled up by the
 plaintiff were not a part of the con-
 demned shipment was merely heresay
 evidence. The defendant could not be
 excused for resistance to an officer m
 destroying trees the very existence of
 which was unlawful. Referring to
 evidence introduced by the attorneys
 for the defendant. Mir. Lyman stated
 that the matter of the note could not
 have been introduced in good faith.
 The implication intended was that it
 was obtained by the entomologist with
 out right, although MT. Fleming had
 himself testified that he understood its
 purpose was satisfied with the ar engagements and did not consider that
 an attempt had been made to deceive
 him. If the entomologist held MT. Fleming's note unlawfully, Mir. Lyman
 stated that the matter would not have
 been introduced into the case since as a
 bribe it would have implicated not only
 the bribe taker but the bribe giver. The
 evidence had shown entire good faith on the part of the horticultural com mission and the claim that permission had been granted to MT. Fleming to remove and plant infested trees was only suderfuge It had been shown that only the proposed articles of agreement had been discussed by the entomologist of the commission and Mir Fleming. The adoption had been dependant upon an attorney's advice. Being advised that the proposed agree ment would be illegal, the entomologist
 had notified MT. Fleming of this fact and refused to enter into it before it had even been prepared for signature. Even though completed this illegal agreement which had been under con sideration would not have effected the status of the trees, for they would still remain contraband beyond the power or authority of anyone to change.