Historical Newspapers of South Carolina

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" ^ r- . JMBBfajaaEgat?a?t?aa?woma* THE TEHDE. AFFIDAVITS ON BOTH SIDES OF THE QUESTION?ARGUMENT OF COUNSEL?RULING OF THE JUDGE. The State's Motion to Change Venue Denied?John . Ferguson to go to Trial at Abbeville to-Morrow Morning, February 4. 1.HS6. Owing to the general interest which is felt In the trial of the case of the State against Jobc C. Ferguson, we herewith reproducetne affidavits, speeches, and the rulings of the Court which were delivered yesterday on a motion by the .State to change the venue. The proceedings of the Court yesterday were of a most interesting nature, and involved a Highly important question, which has never before been raised in this county and which lias never been decided in this Htate. The able and zealous discussion of the subject, as well as the important issues involved are enough to excite the readers liveliest interests While we claim no credit for doing what is Klmply our plain duty, yet we think the readels of the Press and Banner will join the editor in giving thauks to the faithful printers who put every word of the speeches in type last night in order that our readers might be thus early placed in possession of the most interesting matter available. The Court of General Sessions for Abbeville county convened last Monday morning, Judge Witherspoon on the bench. Clerk Zeigler, Assistant Clerk Connor, ShcriflTDuPre and Stenographer Aiken, in their places. I The number of spectators in the uouri room was not, large. The grand Jurors were sworn, as follows: GRAND JURORS. A. B. Wardlnw, Joel W. Lites, Foreman. J. A. Milling, J. Wade Pinsou, H. 8. MrBride, J. 8. Bailey. Thos. \V. Mickols, W. E. Barmore, J. I). Watson, M. A. Cason, P. B. Speed, J... C. Haskell, A. K. Watson, J. B. Hampton, J. P. Young, J.W.Jennings, H.M.Young. PETIT JURY?FIRST WEEK. W. L. Anderson, Jr., Marshall Kay, T. S. Auderson, J. It. Leu veil. Harper Boyd, W A. Lanier, H.W.Bowie, W. L. Miller, R. A. Crawford, H. .1. Power, K. A. Cook, J. W. Peak, T. D. Fooshe, Frances Itosers, Llndsjiy Grifllii, col., W. K. Rothrock, John Harden, W. T. Radcliffe, F. M. Henderson, James Stefle, T. M. Jay, L. E. Stephenson, 1). S. Jones, S. W. Tharp. S. O. Young. The Solicitor gave out a number of inilictjoents. of which special mention will hereafter be made. Before handing them to the grand Jury, his Honor charged them some* what after this fashion : Charge of the Judge to the Grand Jury. Mr. Foreman and gentlemen of the Grand Jury: As this is the first term you have been called upon to serve it becomes my duty to charge you upon the important public functions you are called upon to perform. As you know the constitution ahd laws are intended to secure the pe?ce and good order of society. Moreover under the law every citizen is guaranteed the peaceful enjoyment of his life, liberty and property. You have doubtless heard it stated in the Court House, and it is not improper that I should state it here, that whilst society recognizes distinctions and classes, before the law nil men stand on an equal rooting. In the Court House every man is entitled to the same treatment from the law, however humble or however high he may be. Your first business is to pass upon the bills given you by the Solicitor. The Court here instructed the jury how to proceed upon the examination of bills. Continuing the Judge said: I suggest that Jn bills lor larceny you see that the name of the owner is properly laid in the indictment. TheSollcltordepends upon the papers sent up >>y the trial justices and copies the name he linds there. If it appears upon your examination that the name of the owner of the property is not properly laid you should report to Uo ClAl{i.tffAi< in nnlnr that ho mil V pivo Ollt. .111. other bill. After yon have passed upon the bills given you there are other and importantdutles lor you. As I have said the laws are Intended not alone for general security but for the protection of Individual righlsas well. Where murder. arson, burglary or assault and battery and offences of this nature have been committed upon the properly or person of a citizen it Is the duty of that citizen to bring a prosecution In order that the parlies may be punished or others deterred by their example i from committing like offences. But there arc | offences against society ?t large, which per-| tain to no special individual and which go often unpunished because I here are none to report them. The office of informer is odious, where such offences come to your knowledge Kupported by creditable evidence it is your duty to present them in your general presentment with the names of witnesses?the time and place of said oftences. For instance, the Legislature having the undoubted right to regulate the sale of intoxicating liquors, hasj exercised It, and prohibited its sale without j license. Only incorporated towns and cities can grant these licenses. If it comes to you that persons are selling these liquors without H<iAi\aA + V* nm Hi A on n rr r\f i\ <"} ! ^JCOCIII lliriii, lUC VUI I ,T Hip W! < . ly weapons concealed about the person is j in :de a misdemeanor. The weapon must be, concealed from ordinary observation. If you { know of ca?es of violation of this law you should present them in order that it may be i shown that tl e 1 ?w, which is a good one, shall be enlon-ed r.nd this pernicious practice stopped. Whatever our individual opinion of a 1 ?w we are sworn to enforce it, and it. Ik only This that all necessity for mob violence which j is a disgrace to our State, and our civilization j should cease, if it ever existed. It is also your j duty to inspect the work and the records of public officials. It is not Incumbent on any man to accept office. But if he does accept it hd becomes a public servant and his official conduct is subject to the supervision of the proper officers, which officers you are. I see here a bill for official misconduct. It is not the faultof the law Jf euilty or incompetent men remain in office. The law is explicit and fidequate and provides for the punishment of offending officials. If any officer is guilty of habitual drunkenness, or habitually neelects his business, or is corrupt, or is guilty of fraud in office, or oppression, he ought not, to remain In office. It is a scandal to the public; service. The County Commissioners have large pow- j oru. They nave supervision of public buildings, of the poor house, of roads and of bridges, j You ought to see that they are properly discharging these important duties, "iou ought ^ilso to sec that the trial Justices present, their UUOKS lur JUUi lllNpeCLIOH. I HIJSU MlgKl*nb unit you examine Into the sufficiency of the bonds Riven by publicofficers. This is primarily the duty of the County Commissioners, and I have no doubt they attended to it. But bonds that were good six months ago, may now through the vicissitudes ol business, or death 1 of the sureties, be now worthless. This, there- : fore, demands your attention. I know of nothing else that. I need now charge you upon. Consider the bills given you and report at 3 o'clock. 1 The Judge sounded the ea'endar and found i no eases ready for trial. Solicitor Orr gave notice that a motion was : pending to change the venue in the Ferguson ' ase. Counsel were not ready and Court adjourned at twelve o'clock till three o'clock to Aillov time for the public sales. Mosray Aftkrnoon, Feb. 1,18SG. j Court assembled at two o'clock. His Honor called the caEe of the State against John C. Ferguson. Solicitor Orr?We are ready, your Honor. 1 believe the defendant's counsel waive their right to trove the prisoner in Court. I wish' the matter understood in open Court. The Judge?Do I understand that counsel! for defence desire the presence of ttie defend- J nnt ? Colonel E. B. Gary?No, sir, we do not. Solicitor Orr?I give notice of a motion to chance the venue from the county where the offence was committed to the county of An-1 derson. on the ground that a fair and impar- j tial trial cannot be had in said county. The Judge?This case being set for to-mor I row morning at ten o'clock, I would ask If! there Is any objection to proceeding with the : case now ? ; Mr. Benot?Wo know of no objection. We have no objection at present. Solicitor Orr?The notice was Riven January j 11th. Upon that notice I submit allldavits: j affidavits on the faut of the state, i *)OL'TH CAKOMXA, Abbeville County ; s.?.: Personally comes before me Tames L. Orr, . ^ind on oath says: That he Is the Solicitor of :the Eighth Clircuit. That as such Jje has pros-! .rented the defendant, John C. Ferguson, twice j .011 the charge of murder, that mistrials have i?*ee? ordered on both occasions. That an ex- I tra venire iiad to be drawn the first time, and i -lit the second trial great trouble was had in se-1, .curing a Jury. Tnat a very large number of, extra Jurors had to he summoned, and deponent /ears that it will be almost impossible to ^ft a jury of good men who have not formed ! 4>r expressed noniooninlon. Tlie fact thai two'! mistrials have already been had; that the tcs mony lias been twice published; that a great : interest has been inan'fjsted in the county .re- 1 garding the ease, induces deponent to ask a j i change of venue, for he does not believe that! i a lair and impartial trial can he had in the 1 I County of Abbeville, where the offence was.: committed. ,T;is. L. Orr. (j Sworn to before me this 4th January, 18SG. |: G. G. Wells, Notary I'ubiic. i South Cauolina, ! ahhevillk Cor sty : s.s.: Personally came H. P. Mcllwaine, who be- > lug duly sworn, says: That he is a resident of i, the County of Abbeville. That he is familiar , with the fncts and circumstances of the case : of the Slaty v. Jno. C. Ferguson. Tliat the , public has been made thoroughly familiar j with all the facts and circumstances by thej. case being twice tried and full account oil, ' both these trials being published in the coun- j j ty newspapers. That public opinion is so much divided and interested, that deponent! does not believe thnta lair and impartial trial can he had in this county. That owing to r the two mistrials already hud?the great andi' general interest taken in 1 lie case and the ' publicity given to all the proceedings hereto- j! fore had. lie believes it to be impossible to j empannci u Jury in this county who would ' agree upon a verdict?if a jury could be ob- : tnined at all. H. P. Mcllwain. Sworn to before me this 27 January 18Sf?. \\\ C. McGowan, N. P. S. C. The following named persons signed afllda vlts of a similar character to the one made by ' Mr. Mcllwainc; and to economise space, we omit the words of the affidavit, giving only 1 the names: J. \y. Sign, Auocvilie, J. II. Oldbam, Greenwood. 1 Benet Reynolds, Greenwood. T. F. Ill ley, Greenwood. M. A. Cason, Hodges. B. S. Bnrnwi II, Atibevillc. T. P. Cothran. Abbeville. Tlios. P. Thomson, Abbeville. W. Joel Smith, Abbeville. A. 15. Morse, Abbeville. J. S. Hammond, Abbeville. S. C. Cason, Abbeville. W. E. Bell, Abbeville. J. E. Munda.v, Long Cane. ' J. C. Marshall, Calhoun Mills. ' E. 1$. Calhoun, Abbeville. ; C. Hughes, Abbeville. I Samuel Agncw. Due West. Dr. W. P. Addison,Troy. 1 L. D. Conner, Cokesbury. ? Dr. H. I). Wilson, Abbeville. j Capt. J. N Cochran, Intendant town of v Hodges. R. C. Brownlee, Due West. \ R. S. Galloway, line West. ; Geo. C. Bradley, Troy. J J.T. McDill, T ue West. ; S. P. Brooks, Phoenix. J F. M. Pope, Ninety-Six. j E. M. I.ipscomb, Ninety-Six. ( M. Richardson, Ninety-Six. Solicitor urr?l uuiik mai meamunvus suumittcd are sufficient to show that at least s some of the facts warrant theehangeof venue ' as asked for, but if further evidence is necessary, the records of the Court in this ease would satisfy the Court of ar. improbability of getting an impartial jury to try this case. We have sought to get affidavits from different localities?from representative men in their respective neighborhoods?to place the facts before vour Honor. I don't know that it is necessary to quote authorities, except the Act. The granting of the motion for a change of the venue is a matter entirely within the discretion ol the Judge, as will be seen bySection 2114 of the Statutes. The only motion similar to this which was carried to theSupreme Court, that I know of, is the case of the ! state against Addison, which was refused j pnrelycon technical grounds. The affidavit j was made by the prosecutor and not by the * Solicitor. That motion, your Honor, was en- , tertained. but was dismissed only because of ' technicalities. } In the case of the State against Coleman }' from this county, the defence made a motion J, for a change of venue and asked that a coun- ? ty outside of this circuit he selected. The ! Judge offered to allow them to change to a J; county in the circuit, which was declined by ii defenuaufs counsel. They appealed and the f Judgment of the Circuit Court was affirmed. * The Court intimating in Its opinion, the case should be tried in Ihe circuit. , Archibald, pa^e 252, is to the same efTecf. ! Note 1, and eases there cited. Similar mo- , tions for the same purpose having been sus f tained in several of the States, particularly Wisconsin and New York. " The Code of New York in its provisions is very similar to our own. See Voorhec's Code. ^ tiur statute is even more specinc in ir.e riant of the State to move for a change of venue ' than the Slate of New York. That statute has ' been construed by the Court of Appeals of i New York in the celebrated case of the People ' against Webb, 1st Hill 179. which is the leadins; case on the subject, and quoted by Arelii- , bald, Bishop and Whaiton. Tha' case holding that it is not only the right of the State to change the venue by statute, but by the Com- !. inon Law. f. Bishop's Criminal Procedure, Sections 68-73, j and palticularly Section 73, holds that either ' party may apply for a change of venue. The . venue may be changed by public prosecutor on allidavit. I should not make the motion If I did not! deem it necessary. Full particulars of this J | case have been published twice in the county ^ newspapers. We had trouble in getting a Jury the last time. I think it would be a hard mat- . tei* to get u jury which would give a verdict : in this case. I have tiled it twice. Two mis-! [, trials have been recorded. I could have made i j' this motion earlier, but I preferred to try the |' ease here, because of the inconvenience it will { occasion witnesses, if they are compelled to go to another county. , The Judge?Has the bsue been Joined? j Solicitor Orr?It has, your Honor. A plea of j not guilty because of unsoundness of mind at ' the time of the commission of the homicide. f Mr. Benet?May it please your Honor j; Solicitor Orr?I have given notffce of an in- * tention to move the case to Anderson county. I have no choice, however, as to which county j it may be transferred, except that Anderson county is the only adjoining county in the cir- \ cuit, and would be most convenient for the' witnesses and counsel. The Court is next held .i there, so that there would be very little delay, I ' if the motion were granted. | r Mr. Benet?The counsel for the State is cor- =: root in Knvinp fhnt. nf th<? rrmMnn tn! have the venue changed to Anderson was L, served on us on the 11th of January. The no-1 n tice did not state the grounds upon which the. y motion would be made. The notice was not! _ accompanied by any of the affidavits. Wcj ? were ignorant of the purport of the affidavits D and noi aware who made them. This is the j {, first time that we have seen this stack of atti-\ i( davits. . We ask your Honr.r to grant us time ' to file counter affidavits, should we think iti.j necessary. I understand, your II ?nor, that' , Lite defendant has the rigiit to answer the afti- i. davits Just submitted, eltheir by counter afti- * davits or by ornl testimony. ,1 The Judge?Certainly, Mr. Bcnet, he has the right. j. Mr. Benet?Without discussing at the present time what we may consider defects In the mode in which this application is made, we ,i ask to defer the argument until to-morrow r morning. s Tlie Judge?At whot hour do you propose to. ? take up the consideration of this question?! Would half-past nine o'clock suit you ? I do s not know at what hour it would best suit to ; ^ open Court. Mr. Benet?Half-past nine o'clock these] mornings Is quite early, your Honor. I P( The Judge?Then,suppose we say ten o'clock j fn-mnrmvc mnrriiiicr Mr. Benet?I agree to that hour,.your Honor. \ The Judge?It is so ordered and we will pro-1 ceetl with other business for the remainder of' theday. ^ It ti Tuesday Morning, Feb. 2, IRSO. (j Court convened promptly at ten o'clock. t] Ofllcersand attorneys present us on yesterday. (] A small attendance of spectators was present b on opening tho Court, but tlie courtroom was j soon tilled by interested spectators, who re- S) mained during the discussion. I The roll of grand Jurors was palled, j. The requisite number of jurors being present, u other witnesses were sworu and other cases submitted. | a Court?Are you ready to proceed to the con-j t( sideration of the muiter appointed for this j) morning? j> Mr. Benet?We are, your Honor. Mr. Gary J < , will be heard tirst. We bad only a short time yesterday afternoon in which to answer tlie affidavits submitted by the State. We know thai it Is usual for each affidavit to be written on separate pieces of paper. We therefore, under the circumstances, hope that your lion-jo or will see no defect because the affidavits are 1 (i made on one piece of paper. About one hun-1 b dred persons have made affidavit on the same T piece instead of a separate piece lor each. ! J Court?All sworn ? !r Mr. Benet?All sworn to, your Honor. Mr. jo Smith will read the affidavit, and tin names , n to it. i n i n AFFIDAVITS IN BEHALF OF THE PRISONER. j iI II The Statr of South Carolina, 11 County of Abbeville: h Personally appeared the undersigned who j C upon oaih say each for himself: That he is | a resident, ol'Abbeville County. That be is a i<iju j iidi ? i > it i iic i?uu> t?i mr ui (in: niuic 11 v. John C. Ferguson. That lie knows the ten- | H oral sentiment of the eoininunity in which c; he lives and knows it Is not biased or prejn-lei diced against the state's side of the case. 11< 'l'h^t lie has read the newspaper accounts of i> the former trials. That the comments con- h tainid in the press of the county have in the I main been unfavorable to the defendant and t< have great inlluence in making up a public b sentiment against the prisoner. He believes rl the state can get a fair and impartial hearing ti in this county. Sworn to before me this 2nd dav of Febru-jU nry, M. G. Zeigler, C. C. 1'. V Wyntt Aiken, JI. H. Hill. < < 11. Hill, J. F. C. DuPre, <J .r. Fuller Lyon, W. C>. Iliad ley, li J. 15. Wilson, T. C. Gaston. Tom M. Christian, ji The Statk of Sornt ("ahomxa, ('OFXTY OF Auhevii.I.E. , Personally appeared John C. Douglass, Geo. 11 A. Hanvey, J. 1). King, Jas. H. Simpson, A. ('. L'rawford, A. (?. Cochran, II. O. Stevenson, T. E\ Milford, F. A. Wilson, It, W. Miller, J. J. Rasp, and t he other undersigned too numerous | to he mentioned, who being duly sworn scpa-1 raieiy and each for himself, declare that they , ire residents of the county of Abbeville. That. they are familiar with the tacts mid circumstances of the ease of the.Shite vs. John C. Fer-1 inson. That they know the general senti-j inents of the community in which they live; mid the sentiment of the County in regard to j this case. That they have read the newspaper | nccounts of the same and verily believe that! Ihe State can get a fair and impartial trial. I J'hat. the comments of the press of the County ! upon the trial have in the main been unfavorable to the defendentand have had groat intluencc In making up a public sentiment iiiiainst the prisoner, and furthermore they believe a jury who will render a fair and impartial trial can be obtained without much trouble or delay. Sworn to before me this 1st day of February, l;>8f>. Win. N. Ransom, Trial Justice A. C. fx. A. Hamilton, O. A. Furgeson, T. C. Douglass, B. P. Noel, fas. 11. Simpson, W._P._Mc.Mahan, Tils. A. W ilson, S. I,. KdwnrUH, [}. A. Hanvoy, W. W. Purdy, Itobt. W. Miller, James Evans, J. M. Hall, W. P. Wideman, A.K.Crawford, IJ. L. H addon, P. r. Milford, A. J. Gillespie, F. A. Wilson, J. 11. Penney, J. 1) Kins, H. P. Davis, A. T. Fleming, Joseph Brown, A. G. Cochran, M. J. Link, II. O. Stevenson, (r. G. D;i\vson, r. M. Knox, lienj. W. Williams, J. J. Biiss, 15. A. Wilson, [?. T. Snii.h, Geo. L. Wilson, r. C. Ellis, Bob. Moore, . I. W. Smith, R. A. Haddon, S. S. "Williains, ltobt.. II. Scoggins, U. T. MeMalmn, G. W. Milford, I. W. Fleming, G. W. Milford, Jr., N. E. Johnston, H. T.'fasten, J. A. McLean, 1). K. Penney, 15. 1). Kay, J. H. Shellield, K E. Williams, C. B. Kay, I. F. Clinkscales, J. (?. Smith, I. M.McAdams, A. J. Poore, I. A. Gilliam, T. W. McMillan, r. C. Sutherland, T. W.Morton, H. L. Cole. J. M. Brooks, E. W. Ashley, W. A. Calvert, tt. T. Gordon, Jr., 1). C. Calvert, II. L. Williams, J. C. Ellis, \. W. Sutherland, L. C. Haskell, t\ X. Bell, H. P. Galphin, >. W Sutherland, E. W. Watson, P. .T. Campbi-ll, S. A. Abl", I. S. Williams, S. I). Brown, Pom Young, John Able, [. t.. Simpson. j. a. iwcuoru, iV. W. Edwards, T. B. McCord, 3. A. McClung, .1. T. Carlisle, 3. M. Hrooks, \V. F. McCord, rohn C. Douglass, Jr., J. N. Kins, loseph Miindj', H. J. Dayls, rims. W. McCord, J. J. Walker, lenry P. Burke, K. E. Bowie, \ A. Smith, J. A. Ellis. ynopsis of Col. EH:?cne B. Gary's Argument. May It please your Honor: The motion which the State* makes in this ase is indeed a very unusual onc.Vind lias icver been granted in this State in so fur as ve may judge by our reports. There is only me ease in our reports, which shows that ueh a motion was made, and as the motion nade in that case was properly refused on ither grounds, It. was not decided whether or lot the State had such right. I allude to the ase of the State against Addison In 2 S. C. We iu t-he first place submit that the .State las not the rijjht to make such a motion. Our I "oustitution recites that the right of trial by | ury shall remain inviolate, and although here is another provision reel tins that the 'cnne In both civil find criminal wises, may iechanged, for certain causes, it will be found 1 ipon a careful investigation ol these provisos, that the intention was to guarantee to he prisoner those rights which he had ?t ommon law, and not to eon for any new ights upon the Government. Now one of ge incidents of the trial by jury at common itw, is the right of bolus tried by a jury of leerand of the neighborhood or'vicinage, his right is tharcfore guaranteed by the Contention, when it says that the rifrht of trhil iy jury, shall remain in violate. [Colonel Gay then commented on the cases relied upon >y the State, and said :J I will now call your lonor's attention to the notice of molion in his case and point out what we submit are utal defects, to wit: Because the notice of pplicatlon does not state the grsunils upon t-hich it is made, and the provisions of the Constitution, anu the Act embodying Its prln-i iples. both state that the application for j hange of venue must he made on the ground hat. a fair and impartial trial cannot be had.1 11 the next place such notice of application I i-as not accompanied with copies of the aflllavits upon which it would be made, where-! s section 2111 shows clearly that such was the ntenllon of the Act. The reason for the | ule Is that the prisoner might have time to > obut If he saw tit, the facts stated in such afidavlts by by counter affidavits, and that he night not be taken by surprise. [Colonel Ga* v reviewed the dis as trous cansequenees hat might befall the prisoner if he was fored to argue a motion for n change of venue rhen the affidavits intended to support the notion were heard for the first time, as in]: his case, by the prisoner when the motion: ras made.| The principal reasons urgod by the State for | he change of venue, are that there have been j wo mistrials, that there was great difficulty n cetting a jury and because the proceedings:1 n tne case nave ncen puuitsneu oy ine pa-] irrs of thtf county. The fact that two Juries iave failed to agree, cannot be said to be round for a motion to change of venue, by : he State, because the law does not presume hat the prisoner is gullry. and that the State i 3 thirsty for his blood, but on the contry pre-1 utnes that the prisoner is innocent, and for his reason he would have much better]' round than the State to move for a change of! enue, because he has been deprived of his]. Iberty with the presumption of innocence In | ils lavor, while the State has sufiered in no i espect. The fact that the Juries have failed to aerec, i urely cannot for a moment sustain the idea liat the trial was unfair or impartial. |1 As to the delay and expense of getting a ju-1: 7,1 am free to say there Is something more mportnnt at stake than such paltry considerations, which 1 know cannot for a moment! eigh with your Honor, because they aro not ; lentioned in the grounds for such citange. I V'ho is there in our county so mean, sordid | nd selfish as to be willing that the life of an 1 iinerlcan citizen should he sacrificed for the , nrpose of saving his country a trilling ex-i ense? Surelp human life Is not so lightly j L'gardcd by any of us ? it con not be set ious- j y contended that public sentiment is so] inch in his favor that a lair and impartial j rial cannot be had by the State. It is a well nowii fact that condemnation throughout he county and State has been heaped upon 1 tie prisoner and the bitter and partisan editrials of certain of the press have had their ' lfluenee in Inflaming the publfc mind ' gainst the prisoner. Now, to say in the face f all these facts that the State can complain, 1 tint a fair anc import ial trial cannot be had, r>mii)dv: iic sif flip #\1/1 \vhn lHllorl tho ! 11oop when hungry for meat, becnuse, he i rould not let any sheep bite him. Now doesj: , not seem from those fhcts that the learned | olicltor for blood, and has about as pood '< rounds for changing the venue as the solier hail lor killing the slieep. 1 Why your Honor it would certainly be a ' ?vere rebuke to toe people of a whole county, < ) say ttmj Anderson is capable of giving t<> a j risonora lair and impartial trial anu yet j .bbeville with her illustrious history is in-!1 ompetont. Is the learned Solicitor not m fraid that if this case wore changed to An- : prson, he might possibly, because of ihe >ve and esteem they have for him and the lemory of his very illustrious father, who as such an ornament to tlie State and the ienerul Government, unconsciously sway liem for the state by his eloquence and have ( lie very blood of an innocent man on his , ands? Your Honor, this is no game of pu^h pin to , < ^e who can get a verdict, but to accord to an I, jneriean citizen his inalienable right of bo-1 ij; tried by a jury of tils poors, selected from ie vicinity of the alleged crime. [In conclusion Colonel (Jary reviewed the j j flidiivits submitted by the Stale and con-', nded t'.at. the affidavits 011 the part of : 10 | rlsoner fully rebutted any showing made y the State that a fair and impartial trial auld not be had.] Sjieei'h of IV. (', Beiet, Esq. May it please your Honor: It Is not usual! n a 'preliminary motion jus this may be call-1 ,1 in Itnifh nl' tliu tliminf tlin I'mirt. I ut I conceive this to be no ordinary occasion. I < Ills is far more than a motion In the trial of , olm Fergusou. it is a motion alFeeiIna the , ightsof every Individual within the borders ., t South Carolina. 1 measure my words and ! ly emphasis when I say that this is the most i, lomentous occasion in the history of erlmi-! j al trials in this state. This is the first time ( j the history of the Court of General Sessions , :iat an attack has been rnaile on the immc- j lorial rights of the citizen? rights secured to , im by the Constitution of the State and the ! ommon Law of England. ! ( I am not, unmindful of the ca*e of the Stale ' yainst Addison, 2 S. C., where a similar mo- j, inn was made by the notorious Wigein, the , ( [ailicuJ Solicitor In the darkest days of ltndl-j( ;il rule, wheu corrupt Judges sat on theCir-(] nit and Supreme Bench, and partisan Solid-11 jrs prosecuted at the Bar. Surely that case i i not such a one as our distinguished and ! j onorable Solicitor would care to follow. So j repeat, that tills Is the first time in the his-11 >ry of Soutn Carolina that an attack has ( ern made in the General Sessions on the!} gilts of the citizen, and I regret that the at- : i ick has been made by the State herself. | < I must confess, your Honor, that 1 have nn , tiusually longurray ot authorities to cite to j?. ou, the consideration of which will no doubt . msumc much of the valuable time of the!, oiirt, but I may ask if your Honor has ever ( eard such a motion made before? 11 The Judue?No, I never have. Mr. Benet?So I supposed, and that fact will : t istify me In arguing at greater length than I i louldeare to do on motions familiar to the , nnrt. 1 shall therefore proceed to sketch the j iotory of change of venue : IN ENGLAND. 4 |C As your Ilouor well kuows, the principles: ?' v.'r-i". 'T,. ' \ ii asrnmm???mmmammm nnwn W?a and practices of the Common Law of England obtains in the Courts of South Carolina to a greater extent than in the Courts of any other State in the Union. It is a source of pride to the Bench and the Bar of this State,?it is a guarantee and bulwark of the liberty of her , citizens that the Common Law reigdR supreme In otir Courts of General Sessions. In this respect our Court stands alone among the Courts in this Union. As this motion seeks to abrogate the citizen's rights under tile Common Law?to divest, him of one of bis dearest and most sacred rights to be tried by a Jury of his neighbors, and of his county, I shall proceed to trace the history of "Change ol Venue" back to its sources in the Common Law. In fourth Black stone's Commentary, 169, there is a pregnant passage. "The King has an interest, in the'^o reservation of all his subjects." This is the germ from which sprang therizhtof the citizen In the Court ot General Sessions. The King has an interest In protecting as well as punishing?in protecting the prisoner in the (lock on charge of murder oc \rol1 n? In nnnUhlnnr lilm fur (ilnvill!? Ills fcllowman. And as far back as the reign of| James I the accused had a right to apply for a , change of venue on affidavits that he could not get a fair and impartial trial in the county, 3 Blackstone, 2J5. But from that time down to the present day-, nn examination of nil the English Common Law Reports will fail to discover a single case wherein the government moved for a change of venue. I am not unaware of certain English statutes which provide for removing the indictment on the Court's own motion, or on the motion of the defendant or the prosccntor in certain specified carets, such as when the couuty is defendant. In a charge for failure to repair a bridge or to keep the highway in good order. Nor do I forget that when the venue is laid In the county of the city in certain trials for misdemeanors, the indictment may be removed to the county at large on the motion of either side 011 filing a recognizance of fort3' pounds sterling. Such changes are provided for by statute, and I repeat that at Common Law there is not- a 8olllary case in Kngland where the government has moved for change of venue. IX AMEllICA. So far as I have been able to discover it would seem that, in every State of the Union, a change of venue can be had on defendant's application, except in the S'ate of Vermont. In State against Howard, 2 Shaw, 414. the Supreme Court of Vermont decides that the trial of a criminal case cannot be had in another county than in the county in which the offencc is alleged to have been committed. With this exception the English Common Law on this subjent Ik deemed a part or ours. 1 iiisn. Crim. Proc. g 69. The defendant ma3' waive this constitutional right, ns it is a personal privilege which he may insist ou or waive for good cause shown. IBish. ?r>0. The change of venue, however, is strictly limited to cases in which, without it, there cannot lie a fair trial; the authority is cxercised with grout caution, and only in extreme cases. The right to apply for a changc has been exercised by the government or the prosecution in the following States only: New York, Texas, Minnesota. Wisconsin, Tennessee. The New York Revised Statutes impliedly give the right to the State. 2 II. S. 014. ? 1. And the following eases h:ive so held: People v. h. I. R. R. (Jo., 4 Park., 150, People v. Baker, 3 Pnrk., 181; People v. Webb, 1 Hill, 179; People v. \ermileya, 7 Cowen, 139. In Texas, a stiitme In express words empowers the State to make Ihe motion, the title of the act clearly show-inn this purpose. Cox v. State, 2 Tex.; Ex parte Cox, 12 Tex. 6J5; 1 , Crlm. Law Ma". 821-5. The Judee?Mr. Benet, in all your investigation, did yon find no application for a change of venue made on bohalfof the State? Mr. Benet?0, yes, your Honor. aud I will cite them after awhile. I have them in my notes. Jn Minnesota there Is a similar statute. 1 Arch bold, Cr. P. & P. 231. In Wisconsin a statute giving the Stnto the riaht to move for changc of venue ha* been declared invalid and unconstitutional. Wheeler v. State, 21 Wise. 52; 1 Archb. 234, note. In Tennessee the venue can not be changed without the prisoner's consent, and the re- 1 cord must show that the application was i by him, with the reasons therefor. State Y. Denton, 6 Colriwell, 58;); 1 Arclib. 234, note. In all the Suites, there lore, except New York, Texas, and Minnesota, the defendant j atone ran appiy iur a cuange 01 vcuuu. i Eish. ?y. IN SOUTH CAROLINA. I now come to South Carolina. There Is no Instance In this State, before the adoption of the constitution 18U8, wherein the Slate was the applicant for chance of venue. I shall simply cite one of the old cases. State v. Williams 2 McCord, 3*'3 where the defendant was i the applicant and made affidavit that a subscription had been raised by the citizens of : th* District to apprehend him. The motion was refused, because the "District, Newberry, i is a lame and populous one and could ufl'ord ' many Juries free from all bias which was apprehended. Even In civil cases the affidavits i to induce the exercise of this discretion .are i required to he very strong." Cases clte>l. i Article IV, Section 2 of our State Constitution: "It shnll be the duty of tlie General Assembly to pass the necessary laws for the i change of venue In all cases, civil and criin- < inal, over which the Circuit Judges have orig- < inal Jurisdiction, upon, a proper showing, supported by affidavit, that a fair and Impartial cannot be had In the County where such ] trial or prosecution was commenced." This requirement of the Constitution is met < by the Statute of W6S XIV Statute*, at Large i St, reenacted verbatim in General Statutes, ] of 1KS2, Section 2,114: "The Circuit Courts shall have power to J change the venue In all cases, civil and i criminal, ponding therein, and over which i such Courts have original and appellate Jurisdiction. by ordering the record to be removed i for trial to any County adjoing the County lln i url-iis.l-k fit/til Ortt i/?n / ?r? rv ft MJrt,. 11 11 /U'llQ nnm. I monced, or to any County In tlie discretion < of the presiding Judge: Provided. That the i upplicatlon for removal shall be made to the Judge Bitting In regular term by some party 1 Interested, supported by affidavits which shall I satisfy tlie Judge before whom jthe upplica- ( tion is m:ide that a fair and impartial trial ! cannot be had in the County whore such ac- ] lion or prosecution was commenced: Prnvii- ml further, That twenty days' notice of such 1 application shall be given to the adverse par- ' ty." It hns never been doubted that undei the i Common Law the Courts of Common Pleas I and General Sessions have power to change ' the venue upon a proper showing. On the ] civil side of the Court either party, plaintiff ( or defendant, has had the right to make the motion. But on the criminal side of the I Court the defendant alone lias exericscd < this right; he alone could exercise It under < the Common Law; and he alone can exercise < it to-day, unless the Statute just quoted has i invested the State with the right. I contend < that the Statute cannot bear that construction. And Counsel for the State can only < claim that the conferring of this right is lm- i plied in the terms "by some party interested." i Iliat phrase has not yet been passed upon or l defined by our Supreme Court- II may be I urged by the Slate that Srate v. Addison 2 S. : C. 336 has defined it; but in that case the point I was not made by the Counsel on either side, i nor was it passed upon by the Court in an obiter dictum. Chief Justice Moses says in ] M.a nitlninn . "It lo ilIfHf-illnf> In i what s--en.se the words, 'some party interested' i are used in the act." Hut lie does not decide i whether or no the State is "a party inter- f psti'd." The decision decides this only, that i ' If the motion is to be made for the removal i of the trial on behalf of the State it should be I by the Solicitor, and not l?y the prosecutor." i Your Honor perceives that the Court does not < decide the question'now before you--Is the l State"* party interested," and has she the I right to move for change of venue ? i It is proper now, your HOnor, to consider i what is included in (ho right of < i TRIAL BY JURY. | I shall now proceed to discuss the requisites unci Incidents of this right, and to do so I shall rite 4 lilackstone, 138. where he speaks of a [ trial resulting in a verdict "by the unanimous suffrage of twelve of bis equals and neigh- 1 burs." , In 3 Bacon's Abridgement 722-3 he spenks of the defendant's right to u "verdict of twelve honest and impartial men of his neighborhood 1 t\nd I cite to your Honor that magnificent | chapter In 3 Hlackstonn, "Of the Trial by Jury," chapter21, paae 318, which frotn begin- j nlng lo end is one glowing and just panegyric of this bulwark of our liberties. The learned !' comments!tor shows that this riaht was not as j! Is popularly'supposed instituted by Magna , \ Chvrta, but that cent uries before the barons.r-oiini^l |*.<1 K'iri'' .Tfihn to irmn t llin trre.it, char- '! ler at Kunnymede, the lives and liberties of| our ancestors had been secured by the right of 4 the trial by jury. On page 3-32 he shows that!' the old venire fttcias commanded the Sheriff; "that, he cause to come here on such a day i j twelve free and lawful men libcrr.n vt legale.t of 11 'he body of his county," etc. On page 351) he r ifives the reason for this Jury of the vicinage !! for living in the neiyhborhvoil they were j1 properly the very country or paix to which j1 boUi parties had appealed ; and were suppos- 1 sd to know before hand the characters of the | 1 parties and witnesses, and therefore they bet-,1 ler knew what credit to give to thefcvets alleg- ( 2d in evidence." Blackstone explains that thejnry of the vijinage tie vicinclo was for good reasons enlarged or extended to thejnry <lccorporccotnUnhia r from the body of the county at large. This t 2hange was effected by 24 Geo. II, C. 8. Had 1 John Ferguson lived in the earlier days of.t the English Common Law he would have j t jecn entitled to a Jury drawn from the tncor-1 < jorated limits of thev/7/of Abbeville. To-day s iie Is entitled to be tried by a Jury drawn roin the body of the county at large. This is [ n lis right at Common Law which I stand here a o maintain. This is his right tinder our|S State Constitution, which nas perpetuated in ; \ South Carolina all tl.e rights in a Criminal j "ourt tecurrd by the Common Law. Nay | s nore, this is the right of every citizen ofic South Carolina, male or female, rich or poor j -to be tried b\ a jury of his equals and of his i ounty. "It is therefore" to quote the words >f Blackstone, "a duty which every man owes li 0 his country, his friends, his posterity, and t limself, to guard with tiie most Jealous clr- ft :nmspectlon against the introduction of new v ind arbitrary methods of trial, which, under | 1 variety of plausible pretences, may in time , c mpcrceptibly undermine tills best preserva- ii Ive of English liberty," and I add with equal 1 inphasis this best preservative of the liberty if a Carolinian. 21 In a learned and able essay on "Tlio Klglit li of Trinl by Jury." by Mcrritt A. Thompson pnblishedln 5 Critri. Law Mas. the writer in diaciiKSing whatis included in this right' under the terms of the fundamental law uses the following language, "The matter of trial by Jury Is everywhere spoken of in all the Constitutions as a 'right' and this right which they declare shall be preserved, has reference to that form of trial known as such at the common law, including all the Incidents and features of such trials recognized by and practiced under that law;" page ~1i.. This docj trine Iik supports by cases cited from New York, Kp-nsas, Michigan and Nevada. After quoting Article VI, of the Amendihent to the National Constitution which secures to the accused ' the right to a speedy and public trial by an Impartial jury of the State ami district where the crime shall have been committed," he says. "But It Is not necessary thatany of the legal incidents and belongings of this right, as known to the Common Law, besuccially mentioned in the Constitution order to be brought within the pule of the protection afforded by them, ft is enough for tills purpose that thfe right to a trial by jury be guaranteed in general termis." He cites Swart^v. Kimball, 44 Mich. 443. On the right toa jury of the vicinage this learned writer says. "Whether express mention is or is not made in the written law, that in criminal prosecutions the accused shall have the right to be tried by a Jury of the .vicinage, or the county, still it is included in the right to a Jury trial when such right is secured in general terms. The right to a Jury of the vicinuge imports that not only trie tnv verse Jury trysnga party, but the grand Jury indicting him, fhall be of the Vicinage or neighborhood. The word ''district" and the word "county" are convertible terms when used In this connection In our State Constitution. But this right is a mere personal privilege which tho party muy insist upon or waive, at nisoption, lie cannot be deprived of it in any case, save by his own consent, given In open Court And where there is a change of the place of trial, the record must show that the prisoner applied for such change, or that he expressly'consented thereto, and should show reason llu>refor. A change in the application of the prosecution, and agiilnsl the defendant's consent, cannot, 011 principle, ever be granted. Such a change would amount to an abandonment of the case by the .State.*' The writer cites anthoriiles In support of every statement he makes and in a note he cites the cases' from New York, Texas and Minnesota, to which I have already referred. With this doctrine in view, let us see what our State Constitution hns secured to the citizen. In t he Bill of Bights, Article I. Sec. XI, it says, "The righto! trial by Jury shall remain Inviolate." 1 have endeavored to show your Honor by abundant authority thatthlB right of trial by jury includes as one of its most important incidents and dearest requisites the right to a Jury of one's county. This right I maintain the citizen cm not be divested of but by a constitutional amendment. But granting for the sake of argument that a statute can divert the ciiizen to this right of a Juryot the vicinage, let us see If t lie statute reli *d on by the State dues expressly take this right, away. Article V,.see. II,of the Slate Constitution provides: "It shall be thedutyof theCeneral Assembly lo puss the necessary laws for the change of venue If all ca?es, civil and criminal, over which the Circuit Courts have original Jurisdiction, upon a proper showing supported by affidavit, tlmt a fuira^iiJ Impartial trial cannot be had in the county where such trial or prosecution was commenced." Sec. 2114 of the General Statutes carries out the provision of the Constltuilon. It Is clear from title of the Act "An Act to empower Circuit Judges to change the venue for the trial of actions," 14 Stat. 8t, that nothing new was intended; no innovation upon the Common Law rights of the citizen was suggested; the sole purpose was lo empower the Judges of the newiy created Constitutional Circuit Courts to do what the Judges of the Courts of Common Pleas hdd done before tiie Constitution of 180s was adopted. It never has been doubted that the pluintllf or defendant in a civil cause can move for change ot venue upon a pioper showing. It never haa been doubted that the accused In a criminal case can do so upon proper affidavits. There Is not u ease In our reports piior to 18(18 where the State has made the application and I Contend thfct the Constitution jind Statutes of 1838 confer no new lights upon the Stnto, lake no Common Law righis from the citizen and simply perpetuate In the civil and criminal Courts the rights exercised under the Common Law. I would cite without comment the following authorities on the citizens Constitutional rigm l?) ? jury ill me viumagt;; n vmhi. i?n Mag. 422, Wharton Crim. Pr. and PI. 8 Ed. GOJ; L iiish. Crlm. Proc. Sections 50 and (J". I come now your Honor to consider the law which gulden Courts in the construction of statutes. Let us see if the statutes relied on by the State deprive John Ferguson of his rlsht to be tried by a Jury of Ins county. When a statute divests a right it must be strictly cunstrucd. Hare v. IJlecse, 8 S.C. 70, "It has long been a settled maxim that ueli her jhe provisions of tiieCommon or .Statute Law ire abrogated but by the express words of an act of Parliament," etc. This Is quoted from !in Eng ish case by Chief Justice Moses In Hand v. Savannah It. K. Co., 8 S. C. 23*. Section 2114 no where by express words confers the right upon the Stale to move lor change of venue and thereby divest the accused of his Constitutional and Common Law right. In (tohen v. Hofl, 2 Treadway, 677, our Court lield that where an "Act is manifested repugnant to the Constitution it becomes a duty to icclare it nuil and void." Our Constitution says "the right of trial by Jury shall remain Inviolate." Even if the statute by express words deprived the citizen ot his right, to a |ury of his county, It would be the duty of this Court to declare it null and void as repugnant to the Constitution. ^statutes! in drrrogation of the Common Law must bo stilctly construed. Garaty v. DuBose i S. C. 500. "The ancient rule of our law often reiterated was that penal statutes were lo be construed strictly." Sedgwick on Slat, and Const. 321. An Act passed In Michigan providing that Lnals for trespass on the public lands should be had only in the county where the State :apitol was situated, wns pronounced by the Supreme Court of Michigan "tyrannical, oppressive, unconstitutional and void." Swart v. Klmbal, 44 Mich. 4M. A similar doctrine ?-11 j i.. ttl-1, .. c????? -1 pnwlnrall IVUS KilU UUW11 ill X\.lin. v? oiuiV) x v>aiuuuiir l'en i). 343. Your Honor knows that the doctrine of conduction of statutes permits resort to the title of an Act in aid or its construction. Stale v. Fielus, 2 Bailey, 554; State v. stephenson, 2 iiailey, 331; Hand v. Savannah R. II. (Jo, 8 S. D. m. The title of the Texas Act already referred to is as follows/ "An Act to provide for the change of venue by the State in criminal cases." In clearing contrast to that, the title 5f the'Act in which the State relies in this motion says nothing about providing for the change of venue by the State. Applying these principles and rules to the construction of our Constitution and statute, can it be seriously argued that it was in the mind of the General Assembly of 1808 to confer upon the State a power never dreamed of before and to deprive the citizen defendant in the criminal court of aright secured to him from a time whereof the memory of mau runneth not. to the contrary. Should your Honor hold,?should the Supreme Court hold that this Section 2114 does jive the State the right to move for a change L?f venue, let us pause for a momcntnn'd contemplate the consequences to the citizens of South Carolina. For, so please the Court, I ntn not arguing alone for John Ferguson. Standing here and contending for the righto! trial by a Jury of one's peers and of one's own county, I am arguing the case of every citizen dI South Carolina. This State has ever been Lhc champion of the rights and liberties of the citizen, and her Courts has zealously guarded them. Among the nations of the earth England has not been more conspicuous as a champion and guardian of individual liberty than has South Carolina among the States of this Union. But should it be held that In a criminal prosecution the State can apply for a change oi venue, think of the fearful possibilities wrapped up In such a doctrine. Suppose that In the whirligig of time which brings about j its revenges the Democratic government of; law and intelligence should be overthrown in j this State and there should come again the! rule of the Isinoraiitand the corrupt; suppose, i ind it Is not Impossible, lhat the rule ol' the I ivhite man will In the future give place to thej rule of the negro aided by the white carpet-1 bagger and the scalawag; and suppose which i [s most likely, that another race of Wiggins j shall prosecute as Solicitors, and another set! 3f corrupt and ignorant J udges shall usurp rour Honors place on the Bench?melhinks 11 ^e a citizen of Abbeville county, perhaps the; Jest man within her borders, indicted for some ollence, it matters not what, and drag-: ;ed front his county and from his neishl) >r? !o be tried in another county by a corrupt and partisan jury of strangers and enemies. Can t paint a picture blacker than that? That md much more Is involved in the conse- j luences of your Honor's decision, should you I lold that the State has the right to move fori v change of venue. And yet I would not press m argument ab inconvenienti; such a arfiu-| iient avails not in a Court of lav*. I stand ipon the law and thedoctriue found in the . ases I had cited. AFFIDAVITS AND THEIK REGUISITES. It is now proper to turn our attent ion to the iniiiiivitu iivr wiiipii t,ha ,st:ite endeavors to support lis application lor a change of venue, iefore taking them tip seriatim, I would sub- j nit to your Ilonnr what I have gathered from , he books ah to the requisites, the sufficiency j >r insufficiency of affidavits Hied when such ; l motion is made. Mere belief that the prisoner cannot obtain ; i fair and impartial trial is not sufficient; the; tdidavit must set forth facts and circuul-' tancessothat the Court may judge. People! Bodine, 7 Hill N. Y. 1-17. It must affirmatively appear that there is, uch a feeling and prejudice prevailing in the j ominunity as will be reasonably certain to' revent a fair and impartial trial. State v., 'urbeck. 25) Kan. 5.12. Defendant's affidavit that he dopR not be-! leve that lie can obtain a fair and impartial! rial is insufficient. He must fully state the icts upon which he founds such belief. Erin v. State, IS) Kin. 872. An affidavit by defendent that one hundred j i iti/.ens of the county had united in employ- : ig counsel to prosecute him was sufficient, i 'eople v. Lee, 5 Cal.! Hut In a later case People v. Graham, 21 Cal. Jl-265. tlie lormer decision was deemed to j ave gone too l'ar, and it was held that al- ] 11 rrrr a nmMwiiii ? r though thirty or forty persons had so subscribed such affidavit was Insufficient. I Defendant's affidavit that a snwi of money , j had been subscribed In Newherry county t > <] apprehend him was not sufficient tochung" a the venuC from a district, which isalargeanu c populous one, and could afford many Juries p free from all the bias which was apprehend- ,< ed." Suite v. Williams, 1 McCord 383. T Defendant's affidavit that six or seven ,j newspaper atticles denounced him in strotig j. and severe language : also the affidavit of a ^ single witness that he heard bit ter and threntj oiling language against the defendant, were ; insufficient. State v. Rhea, 25 Kan. 3JG. i Affidavits must furnish "very strong evidence of probable unfairness." 1 Chit. Crim. Law, 201. | Many affidavits of stro'hg prejudice against 1 defendant insufficient forclmnaing the venue 8 from the body of a largo county. King v. > Holder, 27 Eng. C. L. Itep. 9G. 8 Defendant's affidavit stating apprehension ? rind be.llor, ttlatne coma not get a. lair mm ! Insufficient wnen it appeared thatthere was a list of six hundred persons qualified to serve on the Jury. Rex v. Harris. 3 Burrow, im Defendant must show reasonably strong grounds. 5 Crl m. Law Mag. 71K5. A mere general statement that be believes a fair and Impartial trial cannot b6 had on acc'onrft df popular bles,prejudice, faltfc rumors, <?c., is Insufficient. Myers v. People. 26 III. 173. People v: McCaoley, T Cal. 379. People v. Baker, Id. 403. State v. Windsor, 5 Hpw. (Del.) 512. Wormley v. Com. 10 Urittt. (Va.) 608. State v.- Lowry, 4 Nev. 161. Defendant's affidavit as to popolar excitement and prejudice supported by affidavits of three rcspe'fctMble arid disinterested persona, mokes a strotag prima facie ca6e, to be overcome only by the strongest counter testimony. State v. Nash, 7 Iowa, 317. Defendant's affidavit that he Is the victim of a general preiudlce In ttiecouuty is hot sufficient ; rteitl\?r is a failure totfmpune) a Jury in a day sufficient confirmation. People v: Mahoney, IS Cal. 180. People v. Graham, 21 Idem 2'il People v. Sh uler,28 Idem, 49u. His affidavit as to excitement and prejudice against him and the timeof his arrestZls Insufficient. Honecutt v. State, 8 Bart, (fe'nn.j 97l. His affidavit that the prosecuting witnesses are men of influence in the community and that the people are efeatly prejudiced against the persons committing the ciime is Insufficient. MoNcaly v. Stale, 17 FIh.198. That degree of prejudice which wotttcf prevent an Impartial triad cannot be Inferred from editorials in country newspapers alone, State v. Bnrton, 8 Mo. 15. Neither will a clmnsja be allowed for convenience of parties and witnesses. People v. Harris, 4 Den. (N. Y ) 150 Wherean Impartial Jury is in fact obtained imiirmft Mill I nfrtf. tip rovprscd on nuDeal al though s sufficient showing was made to eh- 1 title the defendant to .1 change on ihe ground 1 of prejudice against him. Wright v. Coin, 83 j GratL Va. 830. ; the state's affidavits. 1 Having read to your Honor all that I can ; find In the books a6, to the character of the af- ; fldavtts to be filed In support of a motion like 1 this, I shall now proceed to consider oue by I one the thirty-two affidavits served on us yes- i tcrday by the Solicit or. I Hare Is ti batch of eleven, signed by H. P. I Mcllwjilne, J. W. J. H. Oldham, B. Roy- < nolds, Jr., T. F. Riley, BenJ. S. Barnwell, T. P. 1 Cuthrnn, Thus. P. Thomson, W. Joel Smith, A. 1 B. Morse, J. S. Hammond. They ure all iden- 1 tlcal. 1 As to those cloven men, they oil with one 1 accord swear that the public has been made l.imillar with the facts, &e.r because the case > has been tried twice and full account* pub- I lished in the county newspapers. Is that < igrounn for belh-f that a fair and Impartial ] trial cannot be had In this county ? They say 1 that public opinion has been divided and in- < terested. Is that strange? Is Abbevillecoun- 1 ty to remain siolid and unmoved wheu one of 1 her soivi Is tried for murder? i They say that because of two mistrials, and < the groat and general interest in t he case, and < the publicity given toall the proceedings here- 1 tofore had, they believe it to be impossible to 1 impanel a Jury iti tiiw county wbo would 1 agree upon a verdict, if a Jury could be ob- I tallied at all. What Is the import of this nv?r- < ment? Surely this Is a prime specimen of a 1 iion sequttus. Is it. to be seriously argued that 1 newspaper accounts of the two previous LriirlS' I will malce it Impossible to have now a fair I and impartial trial ? Is the newspaper pre$s a 1 curse instead or a blessing? The Jobruals re- I ferred to nrc In Court, and your Honor*wilt 1 see that they published full accounts of the evidence on both sides, arguments of counsel on | both Sid;**, and the Judge's charge. Tho*e 1 qualified to serve on the Jury in this county < are therefore able to see both sides. Alas! I 1 I cannot say so much for the possible Jurors of J I Amlerson countv. or of any other comity, In I j the St ate. Thedafly papers of tbeStafe, which i I go to every nook and corner ot South G'uroll! nil, and all the county papers that I have seen I I which commented on this case, presented to : their readers only partisan and ex parte accounts of the case, and wtthont exception 1 tho>e accounts were antagonistic to John Ferguson, and strongly in' favor of the Stae i (Here Mr. Benet real extracts fr?m numerous t [journals published in oth- r counting, nil of < ! which tended to prejudice the public mind J j against the prisoner. IIp then continued his i argument) Do these affidavits mean that wo must seek out some dark corner where those I qualified to serve as jurors do not read the ' newspapers? If the venue is changed to any I other county where newspapers are read, the ' chances are that the Jurors have beenpreju- I diced asralust the defendant. Surely, if the < State drslres a fair and Impartial trial of this < case, it were better to remain in this county t whose Journals published without editorial ' comment a full account of the lust trial: < But these affidavits say it would be I id powl- 1 ble to linpancl a Jury here that would agree < upon a verdict, well,that Is John Ferguson's I ] misfortune. That canQot hurt the State. ' ; Twice has lie been tried. Two mistrials enter1 ed. All this time he is deprived of his liberty, j If any one is to move for a ch?n#e of venue, ! surely he Is the one. May it please your Ilonl or, these affidavits, In support of an appllcaI lion like this, art worth?how much ? About . five cents a bushel. | The affidavit of Cicero Hughes refers only I to the publicity and notoriety given to the fortwr trial*,and he thinks it would he in the | interest of Justice to change the^venue. Is . I there factor circumstance here to satisfy yonr i i Honor that a fair and impartial trial cannot i I tie had in this county ? She statute requires J I that there should he such testimony. < J. E. Mundy thinks it is "not practicable to i i get a jury," Ac. Mr. Hughes thought it "lm- ' possible." Still this does not meet the re- < j quirements of the statute. c [ M. Richardson swears It will be "very dlffl- > cult If possible at all" to get a fair and iinpar- I tlftl jury. Ho stales 110 Tacts to suDsiatuiaie his statement. 'V. E. Bell "knows it has been difficult to obtain a Jury." What sort of a Jury does he mean? A Jury to convict? John Ferguson and his counsel can make affidavit that it has been very difficult to obtain a lury to acquit? J. C. Marshall swears that at the last trial "much difficulty was experienced In obtaining a Jury." Too true, says John Ferguson : but is that a ground for change of venue on behalf of the State ? It might be for the prisoner, were he to apply. E. B. Calhoun swears to "long delay and much expense and trouble." I commend Mr. Calhoun's economic principles. He is very (klnd. Ho desires a quick, cheap, and easy [ end of this matter. He is very kind. But the prisoner's lite and liberty a>e of more value than the time, money and ease of the county. W.P.Addison agrees with Cicero Hughes I that it will be "impossible" to *et a fair and (impartial jury; and like Mr. Hughes he give* no grounds for his belief. H. D.Wils m is shocked because "more than [ a day was spent" at the last trial in getting a! |Jiiry to try a fcllow-cliizen whose life is at! stake. Hp, too, bewails the "much exnen*e. j and ttouble" and hopes it will be shouldered ' [ on some other county; and he believes it will ' be "very difficult if it Is probable" to get a it fair and Impartial Jmy. He thinks it "wilt i>e 1 in the interest of Justice" to remove the trial i to some to some other county. The majority I of those who make affidavit for the Slate i agrees with Mr. Wilson in his last averment, i ' In the interest, of Justice." Justice to whom? r To South Carolina? Surely they do not dure t to say that South Carolina cannot get Justice 1 at. I lie hands of an Abbeville Jury. \ E. M. Lipscoomb refers to much difficulty, s great exponse and delay." John Ferguson has i greater cause to complain of difficulty, ex- 1 pense and delay than he has, and yet as de- t fendant he makes no complaint. i Samuel Agnew swears that the accounts C published "elicited much attention and com- t meat." Is ho surprised at this in the intelli- fi gent and news-readlns county of Abbeville? jt Ho frays there is "great interest felt In the j 1 case." Is this s(range nnd unnatural? Does j r he think the tiiul should be had in a county ! h where the people would not feel any Interest J f in thorns.)? (J. C. Bradley's affidavit is identical vith d the first, bath of eleven. j p Robert. C. lJrownlep and R. S. Galloway | c makes affidavits similar to .< muel Agnew's.' 8 L. I). Connor, like Mr. McDill swears to his j s belief, unsupported by any facts. f S. C. Cason is "doubtful if a Jury can be a empanelled who will agree." So is John Ferguson: but I hat Is no proof that a fair and im- li partial trial cannot be had by the State in s Abbeville county. b Jac. L. Orr, the Solicitor, swears to the ex- n tra venires; tne great trouble had in eettlng Juries before; the two mistrials; the publica- tl tion of the testimony; the great interest felt u in the county; and believes with Cicero p Hushes that it would be impossible to get a a I'mlr and impartial Jury. If \re grant all his j 11 facts?for Ills beliefs are not to be considered? } a docs lie furnish any ground for your Honor to | w believe that the State cannot have a fair and i v Impartial trial in this county? I b May it please your Honor I have goiie'tl through tills stack of affidavits made by thlr- : si tj'-two men, all, with one exception, from this e county. As atlldavits they are unusual In h their character; they are extraordinary. Boll! the whole thirty-two down into one, aLd this ! a is their purport: that the State of Bonth Care- h Una In prosecuting this case cannot have Jus- ti tice done her in Abbeville county ! In Abbe- a ville county, which if I have read aright the p history of this State Is regarded by her sister! p counties as second to none in intelligence and ' u Integrity. And yet thirty-two men have'A sworn that Abbeville county will not give the p State a fair and impartial trial. They must tl have made their aflldavlts unwittingly, else v they would not have so slandered the fair n lame and high name of Abbeville county, Z.t * ' . I. ' ' ^ J-. C-" THE COUNTER-AFFIDAVITS. To rebat the affidavits filed by the State, we or the defendant have addneedcounter-affi- , lavlts of ono hundred and elghi.jiood men Hid true, citizens of Abbeville'coBnty. Tuewe 3r affidavits Imve been prepared and pr x'i?rIn haste?since yesterday afternoon. They Icny la clear and direct language the avernents of the State's affidavits; and I conflleutlynssert that they overthrow the State's fcffiduvlts by a clear preponder Mice of te<imony. 6 Crim. Law Mag. 923 ; 5 do., 7j#J. It is now time to advert to 'HE APPLICATION FOR CHANGE OF' VENUE. The Solicitor 1mm correctly stated that noicc of the application was sprved on us on 1th January. But tue notice gave us no hint is to the grounds upon which the chungu of rcnue wan to be applied for. nor was there n Injjle affidavit served with the n flee. I sontcnc) that the respondeat is entitled to iave' copies cf the affidavits served along vlth the notice. Else why tweuty-day*? riie twenty days' provision was iranlestly Inteuded to allow the rcspoulent sufficient time to obtain counter affidavit^ and if need be, to show that the/iffldaf its of thQ moving par tycould be discredited* The case or People vs. Webb, 1 Hill, N. Y.f 79 shows that the practice Is to serve, along Pith the notice of application, copies or the tffidavits on which the application it based. ? I have^irejid* consumed too mnch..of your Conor's valuable time, Jin spite of my stxonjr eslTe neither to waste time nor to QmpK v vords. But as this Is a case of Unit lrnpre** ilon before your Honor and in South Carali, I tsk leave to remark u'port the cA*e ol People /?. Webb, 1 Hill, X, X.? #9,'before I takeiny ieat. the more especially because the Solictor n his opening argument j esterday confess nai inis is mr oasis, uiu luiiuu.iicuim otd > which be bfses the rjfht of the 8'ale to nove for a change of vpnue. :? rJudge Cooly says, "When cases tatfr# Ift ine for Ab better reason than, because they mve a case t > follow, the authority is to be "ound In the first decision, and not by count' ng up the number In the line." People \8< rown of Salem, 20 Mich., 472. Acting .on his lugeisfori* Irfh?ll now review the cose of State irs. Webb. And flrxt, as to the facta,- Tike 3tate moved for a change of venue feecause Lhree newspapers had been trying ju> .orcjtfllce the public mind against the prosecutor/ JD. 180, 182. ; . Newspaper Influence Is consrarywise In our MSB. ~T Second, as to tBe lam. Mr. Jnstlee JDowetx lays In Webb'tfcVise, wherein ibe decides th# Slate has the right to nkfve for jchaoge of ve* hup, "This Is alsy an anthorify which wo faivgatcomirforf Iiiw;" and he cites lCbltty, Jrim. Law, 201: King vs. Vermlleye,7 Cowen, 139. . w? Dfinaf hara tbml ttia anlhnrfllM ill except tber last which is a New York -can*; #ndshowed that they -do not hear Use instruction placed 011 them by Judge Cowen. The English case cited Is entirely conceincd with statute law, and Chltty fs plainly against the doctrine sought to be established. He then said: Therejis a dangerous bere??? / ;' your Hognr, creeping into the minda of l&wu yers, solicitors and Judges thai while doubtrf is to aiitters of tact are to he Buffet In be-; bulf of the defendant, donbte 04 lo matters of law aro to be solved In behair of theiState; on t,he ground. as It has been gravely urged on Uie circuit ber.ch, that the State has no right r>f appeal In crlmlnMl c???e*. Such a doctrine cvou d desoc ate the aiinctfry of llfe.antl liberty and transform a ques-llon involving all ih* citizen ho'di de.r into i mere moot point, a test Question. With which the courts might interest themselves But, your Honor, it is high tttme that 3 should close this lengthened argument, I thank yon for the patience and~ courteous'ia-* iulgence with which you havo listened to me. [ have endeavored to show that the right here claimed by the State, to move for a jiiange or venue Is the Inalienable right of lb6 defendant, a right of which he is Adt to iie deprived by any shipfhodafotute bat only by a constlti tionul amendment; a 'right which nhder the common law. and under our constitution the State cannot cfcerclae, even mould a statuW attempt to confl-r the right upon ber. I have tried to make plain that ?vcn If tlin State had the right, she lias failed to entitle herself -to its exsretee in this casp, because ff she "iervod no affidavits with the motion of jppllcatlon: aitd that even, ir Lhat defect did not exist, the fact that b^r na^ Lice presumed to Indicate the county to which =he desired the venue' elianged, is fata) and Mse application !s to be overruled on thU jronnd alone. May it please yonr Honor, I have spoken at -* ? re at length and with much -feeling on -this motion. For I cannot forget that this prisoner has put bimseir upon God and his country ; ind when the Clerk of the Court puts the lury on their oath he solemnly Informs them ihnt the prisoner has pat 'blihselfapon God und his coup try, "width country yoa are,* Under that formula, and under theductiljtea nnd practice of the Common Law, and the rights guaranteed 6y the state Constitution, f maintain that John Ferguson is ei. Wiled to be tried by al?7 of Ills country - that the thirty-six jrbodatid lawful men drawn on the ie lire are His "conntry" by whom he.Is to be triedr and that he hariheTlgI]|t under the Con t tntlon and the ConimonLaWtobe tried by tii'rs ventre, unless for good (adte fUr chulIoikta tt? m<>mhers ?r? obleuted to. i now take my soil, not without coniMenee rtiiityowr Honor -will rer?>e the application ruade by tfre Klate for three taMoiig:-*-fir8t, because, even (If the State bad the right to make the application, the affidavit* filed on :ier behalf are insufficient to'effect A change )f venue; second, because the notice of application was unaccompanied by copiea Of the iffldavitB relied on; tn'trd, bewiuse the nntteo . >8 fatally defective in that it deftlgiiates the \ :ounty to which, the Solicitor desire thevenuo to be changrd; and fourth, becauseunder the Common Law and the ConxtltuttoitvXbe State lias nut the right to move for a chungt oX venue. Speech of Solicitor Orr in Support ?f tbe Motion (or thnnge of Teirae. May it please 9nar Bfortor: If bald assertion, wltbout either reason or authority to support It, would Influence your Judgment . n this matter, I wouid not.think of entering ihe arena aganlst my. learned friend, who haa usttafren his seat. But the case most bo Jeciueii upon authority, aud not upon the imked.assertlon of counsel, and he has. not lotvittSaied one single authority In cohtrniintintt nf tho nnthnritv ?ob to kited on vestcr Jay. He has not sought Intentionally, I nm iure, to influence your Judgment by the- buv jenrs which bid Imagination has con lured jp,andhy The evil effect which he. claims ivonid follow the granting of this inptlou, yet le has labored for two hours and u'liiilrto uduce your Honor to tlilirk, and perhaps tte jubllc, that the defendant In this case hns jeen persecuted, but I shall npt censure him,, or a desperate case requires desperate demises. The cry of persecution Is a powerful )ne and appeals perhaps stronger than any >thers to public sympathy. In coiitftKlii<.> tlnctlon to this cry, we must remember the uctfi of the case at Bar. A quiet andlnotfeaiive citizen in the discharge of his tfallftr , ivocatlon Is shot down In cold blood. Hud yet ,vhen the accused Is put upou trial for this lenious offense, they say It la persecution. It's the old cry of "stop thler," raised by the ,hlef himself to divert attention &nd they lave 8'iaght to- divert the public attention roin the enormity of the crime byerylng 'persecution." The counsel has holdup^ but lardly for your Honor's ediflcaUen. that a ivhlte man under the ruling, may be dragged from Abbeville county and trjca In a negro > . ounty and by a negro Jury, should the Kadl:als again come Into power. Thut however, s a useless argument, for the Radicals-will lever regale ascendenoy in this State, while ;rass grosvs and water runs, or the sun shines >y day or the stars by night. Counsel has irgued to your Honor that the prosecutlou las sought to traduce the good name of the *- a M/tnr.lii A a \71 rnrl ?lo io lrn Aipn In 1UUCVU.O pcV|U?7. v ?o Iki.vit u 4 1? he Union as the mother of Presidents s?> -1 Ybbeville Is known In South Carolina as the nother of Judges. No man holds the glolous old county of Abbeville In higher eseem than I do; and naturally so. for I am. h latlve and to the manner born, and no man voulil believe that the gentlemen who are issoclated with me in this proscutlon would nfrlnge upon the fair name of old Abbeville, .'he worthy sons of t heir grand old sires hnve iceu taught from Infancy up to respect and to Maintain the dignity and honor of Soutli < Carolina. The sons of Judge McQowan and Jovernor Bonham would never bring: dls;race upon any part of South Ciirottua, for heir fathers in two wars have risked their ives for the State, and have always been her Irongest defenders In times of peace, and I lardly think that It conies with good grace roin a stranger to Impugn their motives. The other conusel who has addressed you ieclares that the State wants blood, and that robably one ol the motives for moving the ase to Anderson is the great influence ol th? k)l lei tor over the people of that (Jounty. To ay that I am surprised at such a statement rom such a source would scarcely express my stonlshmcnt Mr. Gary?If the counsel will permit roe to nterrupt him for a moment, I would like to tatetliatl did not make that as a cbarcc, ut only aslccd It that might not be one ot the aotlves. Mr. Orr?I stated, when I made the mo Ion, that the reason Anderson was selected ;a.s because, in our Judgment, it was the only roper county for the change, being the ojily djoinlng county In this Circuit,, and Iwlng lost convenient for witnesses and counsel, nd being the next county In which the Court Mil be held. A l rial can be had there in threo eeks. and therefore a very shortdelay would e occasioned by the change. He spoke about i?/? ?lw,nnmnc rif hiimnn likiod. I do nut. emu ider it cheap, but I know that it^is frequently xtremely difficult to punish he whoi^tukcs unian blood. Consistency Is a Jewel, an.d I commend that dage to the consideration of the counsel who ist addressed the Court. At the last two rials of thl* case the counsel could not tind nathemas strong enough to denounce the re>s of Abbeville county and the Stale,, yet reslo-change. At this term, the counsel lias elivered a glowing eulogy upon the press of .bbeville County, and by reason oi their ublicatlons in regard to this trial, thinks iat the venue should not be changed. Thoso ery publications called forth his great indigatlons at theiformer trials. Tne press simiy published the facia of the ease, aud ijf