Watauga Democrat. [volume] (Boone, Watauga County, N.C.) 1888-current, 1927-03-31
Removal of Wagner
Trial Ordered by Judge
Case Will Be Tried at August Term
of Superior Court of Wilkes
County

oioieu pledS ever neard IN the Wat
auga county court house, the trial of
Herbert S. Wagner on a charge CT
having killed last Christmas day Earl
Moody at Foscoe, was ordered trans
ferred by Judge Walter E. Moore to
Wilkes county for trial at the next
term of superior court, which con-
venes in Wilkesboro on August s,
before Judge P. A. McElroy.
The order for the removal was
given at 11:30 a. M, Wednesday,
and attorneys for the defense and
the prosecution Immediately retired
to confer on sui able place for the
rial. Shortly after noon they re-
( turned to the courtroom and inform
ed the judge that they had agreed on
Wilkes county. The judge ordered
I the removal and trial at the August
term of court
I Solicitor John R. Jones then asked
/ for continuance of the case involv-
| ing the killing of Dexter S. Byrd,
: and it was continued until the next
term of cour.
The removal order of Wednesday
! followed the failure Tuesday of the
defense motion for a continuance.
: Heated arguments for and against
the motion were heard before the
! judge who denied the motion.
In appealing for the removal We'd
nesday, Johnson J. Hayes made one
of the most eloquent addresses ever
heard here. He pleaded with the
! judge not to take Wagner's life with
out a fair trial, which, he asserted,
could not be obtained in this county.
ut is as important" Mr.. Hayes
said, "for the, defendant to feel that
he has had a fair trial as it IS to give
him fair trial. If he is convicted in
this county, with sentiment county
as it is, he will go to the electric chair
feeling that he has been judicia'ly
murdered"
Frank "A. Einney, Hayes rival for
the judgeship of the new federal dis
trict of middle North Carolina, fol-
lowed with a plea that brought tears
TO the eyes of Lee Moody, ia, her of
one of the nj L killed by Wagner.
Mr.. Linney denied positively that
either Moody or Byrd had been act
! i've in stirring up sen iment against
Wagner, as was alleged in an affi-
davit by Wagner, upon which the
motion for removal was based. Mr..
Lnney also quoted the law in re-
gard to the selection of jurics, and
laid special stress on that part of it
which states that the j. ry shall be
composed of the defendan s peer, A
peer, Mr.. Linney said, is neighbor
who lives in the vicinage in which the
crime is supposed to have been com
mitted
He argued also that the sd ne s1tu-
alton that is complained of iii he af-
fidavit as existing in Watauga coun-
ty exists also in all of the adjoining
counties to which the case could be
removed. for the same newspapers
circulate in all of them. l. was TO the
newspapers that Wagner's affidavit
attributed a large part of the alleged
hostile sentiment in Watauga county.
j. H. Burke of Taylorsville aunt
ed the defense with its argument of
Tuesday for a continuance YES
terday," Mr., Burke said, ''the de-
fense argued that the citizenship of
Watauga is so honorable and so just
that it is willing to wait until later
date for the trial Today, they say
that this same Watauga citizenship is
so biased that fair trial cannot be
had here"
W. C. Newland closed for the de-
fense by answering Mr.. Linney's ar
gument about jury selection. He as
serted that the jury should not be
composed of men who knew all about
the case, but rather Of strangers who
knew nothing.
Af,er the arguments had closed,
Judge Moore said that since he had
been in Boone he had learned through
conversations he had overheard and
through other channels that senti-
ment does actually exist in Watauga
county in regard to this case, and that
this sentiment justifies the order for
removal.
Witnesses subpoenaed in the case
were called and instructed without
| further notice to appear at the Au-
gust term of Wilkes superior court.
The witnesses were recognized under
5000 bond for their appearance at
thai time.
Court got under way Monday