Historical Newspapers of South Carolina

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:c - >;.r*.y. . r. . r - : . . , >: h*' *? : v-S >\ v-si? < ' > * TH1 FfflGUSON CASE. * OWING TO THE ABSENCE OF AN IMPORTANT WITNESS POSTPONEMENT IS ORDERED. On notion of the State the Case of John ('. Ferguson is Put off From Thursday, February 4, to Monday. February 8 -- Able Argument by Counsel on Roth Sides. Thursday Moknixg, Feb. 4,1SS6. Court was called at ten o'clock. Judge Wltherspoon, Solicitor Orr, Stenographer Aiken, Clerk Zeigler, Assistant Clerk Connor, Sheriff DuPre, attorneys, the prisoner, witnesses, and spectators in Court When the rush and hustle attendant upon the assembling and seating of an audience had quieted down, and each man seemed anxious to hear the first word that might be uttered. Solicitor J. L. Orr, W. C. McGowan, Esq., and Capt. M. L. Bonham represented the State In the ease of the State against John C. Ferguson, charged with murder in the killing of Arthur M. Benedict. \\\ C-. Benet, Esq., and his partner L. W.Smith, Esq.. together with Colonel Eugene B. Gary, appeared in Court in defence of tne accused. The Judge saidThe case of the State against .John C. Ferguson was set for trial this morning. Solicitor?I will call my witnesses, your Honor. f After calling the list of witnesses, the Solicitor said:] Two medical experts. Dr. Pressly and Dr. Wideman, are not here, your Honor. It is Impossible for tbeStatc to goon with this trial without them. The Judge?Are all these parties under recognizance? Solicitor?Yes, sir. Mr. Benet?It seems to me that they could be brought here in time to go on with this trial. One of these witnesses lives at Due "West, and the other lives in the lower part of the county. ? Solicitor?It Is impossible to get Dr. Pressly here. He is in attendance upon the Court in A asms t a in a case which is set for to-day. I should not delay, but I cannot safely go to trial without hlin. 1 understand that Dr. SVideintin will be here. Mr. Benet?Do we understand that Dr. Pressly's testimony Is of such Importance that the State cannot ?0 on without him. Solicitor?\es, wc think we cannot go on without him. Mr. Benet?Expert witnesses, your Honor, nre not so Important as to delay thetrinl. We will accept his former testimony, as though he were present. The stenographer may read his notes of his former evidence. Solicitor?Dr. Pressly Is a witness in reply, and we couldn't accept the proposition. Mr. Benet?Plow can the Solicitor, your . Honor, say he must have Dr. Pressly here? This Is the flrst time I ever heard of the trial of a case belns; delayed on account of the lack of expert testimony, when the State has three other Doctors who are witnesses as experts. Colonel Gary?Our client is in jail, your Honor. He is not out on bail. Weclaim what the Constitution jniarautees tons?the risjhtof a speedy trial. Our client has now been conlined In Jail for a year. Solicitor?1 am not disposed to gainsay the right of any client, but I understand new evidence is to be given in this trial, and I must insist upon my right to have my witnesses {iresent. I could have asked for a continuance jecauseof the absenseof counsel, but I have not done this. The only postponement that lias been granted was made on the prisoner's own motion. I am equally anxious to try this . , case at this term of the Court. I think we can get Dr. Pressly here by Monday morning. The Judge?This is an important case, and the State cannot be forced to proceed without Its witnesses, it occurs to me mat n wouiu be proper to give the State a little time in which to procure the attendance of the absent witnesses. Mr. Benet? The State has almost unlimited autocratic power from flrst to last. The State had it in its power to have every one of its witnesses here the flrstday. It lias its odicers here, and has the right, to pay its witnesses for their attendance, and it has the right to force the defendant to trial at its pleasure. We have only the power to bind, and yet some of I their witnesses cannot or will not come because the State refuses to pay them. With these advantages the State's witnesses are not here. Ours are here, and from other counties. Solicitor?Our witnesses were here all the time, so far as I know, until I learned of l)r. Pressly'sabsence. As soon as I found out that l)r. Pressly would not be here I telegraphed to him. Mr. Benet?This is much more than delay. It means that tho present venire will not sit on our case. The Judge?I can'tassume that, Mr. Benet. Mr. Benet?Under the law we have a new jury every week. This jury was drawn for the trial of the General Sessions business. We contend that any one has the riirht to be tried by tliis venire. Of course your Honor knows this venire was not drawn by the prisoner, but by the officers of the law. Judge?Yes, it is to be presumed this jury was drawn in accordance with the law. Mr. Benet?The defendnnt sees the names of the jurymen, discusses them one by one. that lie may be able to determine what answer to jiiaivc w uvu tuo onuit w? "? I whether he is willing to go to trial. The prisoner has a right to see the list of the jury, as he has a right to demand a three days notice before going to trial. Is lie to be deprived of that right and placed into the hands of a new Jury, the members of which he has not carefully studied ? Dr. Prpssly knows nothing of the facts of this case. His evidence Is only expert testimony. Expert testimony is only hypothetical testimony?the driest, least valuable and most scientific of all. Dr. Mabry, Dr. Wldeman and Dr. Hill are Just as learned in medicine and Just as distinguished, and they nre all bound over by the State. Will your Honor grant delay merely because ot the absence of a doctor, when there are others present? Our witnesses have been here since Tuesday. We have all our witnesses here, your Honor, and the State ought to have theirs here. The only thing to be done under the circumstances, is lo admit Dr. Pressly's j testimony, as given at the former trials. We have one witness here from Pickens?Dr. J. It. Riley?who came at great inconvenience. The Solicitor himself informs me that he had told ! Professor Klley in Greenville, where he saw j him the other day, that it was probable he' would not be required to attend Court this week, as there whs lo be a motion made by the State for a change of venue. But yesterday Professor Itiley telegraphed to the Solicitor whether he was to come or not. At the Solicitor's request, I answered the dispatch, putting the Solicitor's name to it, saying: j ' Come at once," and here he is. We cannot I safely go to trial without him, and we learl that we cannot have him here next week. We! are almost certain that some of our thirty-1 four witnesses cannot be here then. We know ' tlwt Dr. Prefsly would be shocked if he knew j that the case was put. oil' on account of his ah- > *enee. \Y e make only an earnest prayer. We; ask, as onr right, that we be allowed to go to trial without delay. In the name of the de-1 lendant, who has the right to examine the list | of Jurors who are to compose the jury whic h is to try his cause, we ask to be allowed to go to trial. Solicitor?I had a perfect valid excuse for not eoing into this trial now. Two of the State's counsel are unavoidably absent. I ex-; pected to try the case until I received a letter j from Dr. Pressly saying he would not be here.. ji comeiTcu wiui me sncriu as 10 me ijuicKesi. > and surest way to got him here. 1 instructed him to send a telegram with my name to it, | ordering him to appear here at once. I wasn't; bound to do that. Court will be in session j next. week. If counsel is strenuous for a trial he can no doubt have it then. It will be a de-' lay of only three days. , Mr. Benet?Four days. Solicitor?I don't understand why the conn-: sei on the other side should be so intensely, jmxious to try the case bv this jury. 1 cannot understand why the jury for next week is not' competent to try the case as the Jury fori this week. He may have reasons for desiring to come before this Jury. I don't know. The prisoner has had a trial at each term of the <'ourt, except atone term when, on his own motion, he moved for a continuance because' of the absence of two witnesses, who lived within two miles of town, and who were in (.'ourt in fifteen minutes after the motion for a continuance had been grunted. I am willing to have the trial set for Monday. As Mr. Benet iva< rising to speak, the Solicitor said : We understand that we have the rliiht to open and close the discussion. Mr. Benet?May it please your Honor, that may be so in any formal argument, nut we are not to be prevented by technical rules or: regulations from submitting our side of this matter to your Honor. The Solicitor says we ' must have reasons for being so desirous of coming before this jury. Your Honor, we have reasons, and they are high and honorable reasons. Here, your Honor, is the list of the venire. I am bound by my duty to my client to examine this list carefully.* This I have done. After consulting with him, and with my associate counsel, we have come to the conclusion that Ferguson can have a fair and impartial trial at the hands of i his venire. That Is what we havedone.and this is all. To have done less would have been to be derelict jn our duty. Why, your Honor, what is the) tnsonlio i\t n vpnire of tliirlv-siv if Mm fin .fondant Is not to have choice? Would ihe Sollcitorhave us come Into Court, blindfold us to the jury ? I have examined the list of jurors for this week. Out of the thirty-six there are twenty-five, as I informed the Solicitor the other day, any twelve of whom the defcndnnt is willing to he tried by. What's the reason i fJ'or urgincdelay ? I am here defending a pris-j oner. We have the life and liberty of a man ' ?t stake. It. matters little to the State whether a verdict.of guilty ornot euilty is obtained. J t matters much to us. We moved for a continuance before because Ju due Colli ran had expressed dccided opinions which were preju-i i 4ll?-ial to the prisoner. ' j; The Judge?I do not understand why there'1 should beany personal allusions in thisdis-jl tnissiou. I don't mean to make a personal i j reference. There shall be a fair and Impartial' ; trial?if it goes on. The only matter now he- j tore me is t ho motion lor a continuance of the | case until Monday, because the state thinks it j icannot safely e<> to trial in the absence ot u ! | material u itness. So icitor? I am willing to set the case for, Monday,or shall not object toa postponement! of the trial. l)r. Press I y is absent, and 1 can-1 not get him here before Saturday, lam per-j l'ectly willing to try the case on Monday or to postpone it. I Judue? I would like to see the Act authorizing the drawing of the jury for the second week. Solicitor?It is the Act of 'S3, your Honor. T will read it. [After reading it, the Solicitor said :J The next jury can try it as well as this. The Judge?I recognize the importance of the case. The State has Informed its that it ennnot safelv tro to trial now because of t he absence of a witness. Tne reason is not sullicient to postpone it until another term. I will however postpone it until next week. In the meantime I hope the *tate may use clue diligence in getting Dr. Pressly here. Col. Gary?I hope that you would not dislike to hear suggestions from us. There are two ; ways to get Dr. Pressly. One is, to send him a telegram: another way would bo to send a constable by this morning's train, which has not yet gone. He could be gotten iiere by one j o'clock to-morrow. He Is a witness in reply.! It will be at least one day after the trial is j commenced before he will be needed. Wej have thii/ty-four witnesses, and he will be j heard in reply. Solicitor?We do not want to commence the j case without all our witnesses being present. | Suppose we start the case, and we fail to get] him by to-morrow evening. You can sec our j embarrassment in that event. We can get] Dr. Pressly here in time for Monday. If the | case should beset for that day the new jurors ! would be perfectly competent to try the case. Mr. Penot?As your Honor lias conceited much to them, it isourtime to get kindness. The Judge?I have no kindness to anybody. Mr. Benet?Concession then, your Honor, j From counsel's own statement the earliest possible time he could get here would be tomorrow afternoon. Dr. Pressly will be examined at the tail end of the trial. The law pro-1 vides that the jury in charge of a case on Saturday shall hold over Sunday. We hope to go j to trial to-morrow morning. TheState basal- , ready been the cause of much delay in its mo- i tion for a change of venue. We think t lie case j ought not to be put otf. The Solicitor himself excused an important wKness for a day. I ?iiv \f;iiivv 11fi(1 sick daughter.' I asked to fix a time before which the case should not be called. We agreed on Thursday morning and I gave Dr. Mabry permission to be absent until that time. Dr. Pressly may be gotten here by half-past two o'clock to-morrow, but if lu> fails to come we will then be in the same lix as now; but we will have him here on Monday. We cannot go to trial without liim. Judue?'That is late. I will fix the trial for Monday. Doth sides shall have the benefit of the process of the Court to compel the attendance of witnesses. Mr. Ik-net?That Is equivalent to a continuance. The Judge?No, I will not continue the case beyond the term. Mr. Benet?Will your Honor note our exceptions. The Judsre?Certainly. Mr. 15onham here suggested that if the jurors were to be discharged that some of t hem could leave by the morning train, If their certificates were prepared now. It was suggested i by others, however, that the train had gone. | The pay certificates of jurors were signed, and the jurors were discharged from further atteudance upon the Court. RE-CALL OF JURORS. ? Before the Jurors <Jet Beyond tne Call of the Court they are Ordered i Back?But a Juror who lias Been Excused Ceases to be a Juror, and he Cannot lie Again put I'poii the Panel. In a short timeiifter their discharge a rumor reached the Court room to the effect that Dr. Pressly had arrived. The Solicitor immediately had the Court crier to call him, and soon Dr. Prflssiy was present in Court. The jurors not having gone beyond the call of the Court j they were immediately called back. After j hurried consultation among the counsel interested in the case, the legal question as to I whether the Court could put a juror on duty I alter he had been discharged was argued with j earnestness. Col. Eugene B. Gary made the opening remarks, which were somewhat after this man- j ner: Owingto the limited time we have had, ] we have no authorities bearing directly on this case. It is a rare thing to find a c;ise analogous to this. There seems to be no definite law on the subject as to when the powers of jurors cease. Your order tins morning was merely an oral order, which we hold you can rescind at any time before the formal entry of the same is made in the books. Even if the Judge signs an order he has the right 10 with draw it during the term time of tlie Court. My main point is. that your order discharging the jury is merely an administrative order, which mav hp revoked. The Judge?Of course I recognize the di(lieu I ty in finding authorities on sueh an anomulous condition of aiiairs, and counsel may have time to look up their authorities. Mr. Bsnet?May it please jour Honor: it seems to me that there are two points to he considered in discussing this question. First, as to the effect of your Honor's discharge of the jury. Second, as to the defendant's right to waive all objection. 1. As to an order: I understand from tlie officers of the Court that no record of the discharge has been entered on the minutes of Court. It was disputed that a judge can durinu the term time revoke any order he has made, even though that, order had been made it) writing. It would seem, therefore, that an oral order may be revoked much more easily. Your Honor recollects the recent case in 21 s. ('., a Georgetown case where the Supreme Court holds that Judge Aldrich had the right to correct an error in an order passed by him, even thotmh that correction was made by him after term time. The difficulty that, sometimes lias prevented Judges from revoking orders in the General Sessions does not here exist, as there is, as yet, no record ot the order in the journal. I well remember two instances when your brethren of the bench in this Court would have chanced an order passed but for the fact that it bad been recorded. From this it would seem that your oral order may well be recalled, Isitnotstill within your discretion? It was in the exercise of your discretion that you discharged the jurv; if they are still within your jurisdiction, cannot a like exercise of your discretion recall them? I confess thatthe case or the state against Whitman, 14 Richardson, would seem to militate against this doctrine, for it is there held by Judge Wardiaw that a juror wlio has been excused, ceases to to t>e a juror, and lie is to be considered as if lie had never been drawn, but the Judge goes on to advise that there should be some memorial, some record of his discharge left in the Court as evidence of it. Since that decision, our rules of Court have adopted Judge Ward law's suggestion, and it is now the law that, there must be a record of such discharge or excuse 111 the form of an allidavit of the juror, endorsed by the Judge. I respectfully submit that the case of tiie j State against Whitman should not, under the changed circumstances and new law, hinder your Honor from withdrawing an oral unre corded order. 2. As to the doctrine of waiver: But should your Honor consider that the doctrine of Whitman's case is conclusive and j binding, is it not for the defendant aione to j object to the recall of the jury? He may j have objections to any irregularity, but.' but is not the irregularity remedied ' and the objections removed by his rignt ot waiver? In this case he waives all I right to object, and the question is?1s this! such an objection which he has not the ritrlit; to waive? For your Honor well knows that, j the Court will not permit a defendant ac-;i cused of crime to waive all his rights. I am! free to say that I could find in the few niin-i utes at my disposal no authority that is pat upon this point, but I have h?*re several authorities as to the accused right to waive,' with instances ot what rights lie inav waive.; Hero is one, which iioius mat me prisoner can waive his right to be present during the I trial. Here is another which holds that the! prisoner can waive his right to he tried by a) jury of twelve men, and to consent to be tried i>.va less number. There are numerous authorities which bold that any objection to the; jury known to the prisoner before trial must ; be made by the prisoner before the trial be-) gins; otherwise lie is held by bis silence to have waived his right to object. It has even j been held that a uefendant can waive his J: right to be tried by a jury at all. and submit j his case to the .lodge. The uniform doctrine,! is, that all such rights are simply personal] privileges, which tlie accused may insist on or waive at his option. Applying these doctrines to this .ease, and i reasoning by analogy, it seems to me that! John Ferguson alone should be heard objecting to the recall of the jury, and as he waives this right to object, what is there to ' hinder your Honor from recalling it? Surely the State can't object. To proceed to this trial at once would be in the Interest of ecoii-, mny of time, money and trouble, and the,1 State has been arguingall week against delay, expense, and trouble in getting a jury. '1 he Judge?Is it. necessary to enter the excuse of a juror on the minutes of the Court? Is it customary to enter the discharge of the i jurors at the close > f the Court ? Mr. Benet, after consulting with the Clerk ; of Court, said: The Clerk informs me that it' Is so. And your Honor recollects that the i grounds of excuse are put in the form of an j affidavit, us the rule of Court requires. 1 take it that the order discharging the jurors can't,! be irrevocable, no matter whether the number be three or thirty-six. It would not be irrevocable during term time, even if the re-' cord had been down on the books. < Solicitor?It is necessary to proceed regular- j ly. The question of jurisdiction is one which I cannot be waived. I listened attentively to the authority which 1 the counsel on th'* other side read. The one t from II Richardson which he first referred vour Honor to Is the only one that a lied s the I question. It is conclusive that no juror can / lie recalled after having been discharged. It. t is nut usual to make a formal order on the * : ; - I . . -.">_ -V V.t V discharge of I he jury. No formal order has|( ever been taken. It Is merely noted by the i Clerk in in liis mimues <?t' the Court proceedings. In all my experience in the Court. I ha ve never known such an order to be issued i by the presiding Judge. Judge Wardlaw says ' when a Juror is excused he is no longer a i member of the pauel, and occupies the same position as if he had never been drawn. The tialance of the decision simply suggests a uniform practice fur the .judge:; to follow in ex- 1 eusing jurors. The question was squarely made and decided in the case against Whit[imin, and must be conclusive of this ease. Without that decision however I should have j ' no doubt. A legal jury can only be procured by following speeirtciilly the statutory pro-1 visions of drawing by the jury commissioner, | ifcc. Your Honor would have as much right to summons the lirst t welve men whom the Sheriir would meet on the street to try this ease as to require these discharged jurors to trvit. It, eonld onlv bo tried by them by consent, and if they"refused-to serve, I don't| | think your Honor would have the right to i make thorn do so. I Since Dr. Pressly has made his appearance the State is ready to go on with the case, and the only matter for your Honor to determine is your authority to do so under the existing facts. Mr. Benet?This is in the exercise of your | Honor's discretion. No minute of their discharge has been made, and it seems tome that your Honor can recall anything done orally. In the Edgefield case of which the .Solicitor speaks the law did not provide tor a Jury. 1 he regular term of one week had been extended to two weeks without making any , provision at all for a jury. With your Honor's permission I will read the act of'63. [The act was then read.] I think the law holds ihe.jury for the week. The defendant is willing to waive all objection to the jury which may or can be raised to the jury because of your oral order. Your order in discharging the jury this morning should therefore have no more etFeet than if your Honor had excused them until to-morrow morning, and circumstances should have changed so that their presence would have been required earlier. Your Honor could have ordered them back earlier, if they had been needed. .Solicitor?This very matter was decided by the Supreme Court, and I can not express it. as well as Judge Wardlaw does in his opinion. Where a juror has been excused, lie ceases to be a member of the panel, and can act no tniwn limn if lio hml nfiVfir been drawn. This is not a question however, of waiver, as argu-1 ed by the learned counsel Ion the other side, but a question of Jurisdiction which can never bewaived. Any action taken by this Court would not be voidable, but absolutely void under my construction of the law. The Judge?When the ease ot the State against John C. Ferguson was called, the witness, Dr. Pressly, did not answer. It was thought at the time that he could not be brought into Court until to-morrow evening. The question as to whether the State could be compelled to no to trial without his presence was argued. I held that the .State could not be forced to trial under the circumstances. The Solicitor Informed me that he had no other business for the juries. I then turned to petit jurors and informed them that they would no longer be required to attend upon the sittings of the Court. In a short time after discharging the jurors the Court was informed that Dr. Pressly was present. I was Immediately requested tosedd for the jurors, I which request was complied with. The complication I very much regret. For the convenience of the jurors I made the orIder. The importance of the case admonishes I me that there should ae no irregularity, and I therefore set Monday next as the day for the beginning of this trial. I wish it distinctly ! understood, so far as tho State is concerned at least, that the trial of the case will be commenced on Monday unless some very good reason shall then be assigned lor a delay. Solicitor?I desire, your Honor, that Dr, Pressly be called to the front thai he may explain hlsabsr.nee, and tell the Court how he came to be here at this time. I want the Court and the counsel 011 the other side to underj stand that I am in no wry to blcine for this I occurrence. I The Judge?I attach no blame whatever to the Solicitor in the matter, but if he desires it Dr. Prt-ssly may make the explanation. I Dr. Pressly thereupon came forward and said, substantially : 1 had a case in Court in Augusta, which was to have been tried to-day, land had it been tried I could not have gotten here before to-iuorrow evening. The case was I widmiii to trinl. nartlv I Cor the reason t hat I was anxious to be here I as required. The train yesterday was delayed and 1 did not gut home until late lust night. The Judge?Why did you not come into Court earlier this morning? Dr. Pressly?It was partly owing to the distance wnieh 11 ive from tills phK:e, and to the bad condition of the roads. The roads are very muddy. I got the Solicitor's telegram as soon as I reached llradlcy, and came on as soon as I possibly could. And thus the matter stands. Court was adjourned for dinner. The remainder of the week will be spent in hearing such cases as do not require the presence of a jury. From the Imperfect reports of the proceedings of the Court which we have published in this case, it will be seen th.it the Solicitor and his associates, and the counsel for the defence are ably discharging their duty with fidelity to all the trusts imposed in them. The Slate could have 110 more able representative than the Hon. J. L. Orr and his associates in this case, all of whom have the entire confidence of the whole people, while the zeal and ability of the defendant's counsel is a subject of remark by everybody. Although this case has been before the Court for more than a year, yet there is still much interest felt in the result of the trial, nnd many of our citizens believe that a verdict will not soon be had. Everything which we have published about the case has been eauer ly renu uy i\ imijumy ui uurM(u.uTiuu.>, uuu as we have published, as nearly as possible, all the facts connected with the case up to Uiis time, we shall try to furnish the concluding chapters of this long-eon tin tied story, which has perhaps exeitrd more gcnoral Interest t han any ot her in the history of Abbeville county. O GETTING READY FOE THE FRAY. The <iuoMtion of a Full Pancl--Tlic Prisoner is Rondy to <'ome to Trial ?.llr. liciK't Makes an Able Arjruiiicnt on the Importance of "Indifferent" Jurors?The Judge Refuses to Accept His View?A Juror is denied tlie Privilege of Giving His Iteasous '"for >iot IScinx tlie Ulan You are LttoSdn^; for"?The Panel is Exlsausted. Monday Morxint., Feb. 8, issfi. There was not a large attendance of spectators present on opening of the Court, but it was not long before the Court, room was well filled, and considerable interest was mannesi. Court was called at ten o'clock. Judge Witherspoon, Sheriff" PuPro, Clerk JSeigler, Assistant Clerk Connor, Stenographer Aiken, attorneys, and prisoner, present. As- 1 sistant Clerk Connor called the roll of petit jurors. Xine were found to be absent. The Judue?I will now call the ease of the State against John C Ferguson. indicted for murder. Mr. Solicitor are you ready? I1 Tin* Solicitor?Yes, sir. I will call the State's 1 witnesses. After call of the roll the Solicitor said: We are ready, your Honor. Mr. Smith then called witnesses for the do- 1 fence. : J udsre?Gentlemen, are you ready? 1 Si-licitor?We are ready. Mr. I.enef?A frreat many of our witnesses j have not answered, and we are not ready. To j prevent the loss of time the panel of jurors j' mitrhf be completed while waiting for our wit-; ne?scs. 'l'he Clerk called I he roll, some nine Jurors I: absent, as on first '"ill The.inds.rt?Mr. JJonet are you willing to go . on before the panel is lull ? Mr Uenet?In a ease of this importance, I think we are entitled to sec full panel before 1 coi'iineneinjr. The Judge?The witnesses might be called!1 again. Col. Gary then called absent witnesses, and i !i number were slill absent. ;1 The.Jtntsre?Have tnese witnesses been regii- 1 larlv subp<eniod ? f' Mr, iJenel?They have, your Honor. 1 Tlie Judge?Are they residents of the eoun-1 ly? ! Mr. Monet? .Most of them are. All answered j < Inst week. Some of them live in (ireonville, j some in Anderson, anil some in Oconee eoun-, ly. !1 The .Indue?The only reason why I asked, it ' is not usual for so many witnesses in any one j' ease to fail to answer to their names. '1 Mr lionet?There are not. so many absent? j 1 ten. or perhaps nine. Very likely two of them |i will eonso by the train this afternoon. Per-11 haps four or* live would still be absent. They ! < i;ot a b;id lesson last week,and they may not ' I be impressed with tlie necessity ot being 1 prompt this morning. I> Mr. \V. Perrin submitted .1. F. Agnew's [1 Ncuse as juror. His partner is in (ireenvillc ( is a juro: in t be United States Court, and hell ivould f^utier serious loss in his business by if serving as juror 111 this Court. The Judge?Hand un the paper Mr. Perrin. 1 [ will not pass upon it now. j < Judge ordered the witnesses to be again call- > < ,'d. Witnesses absent as before. i? The .Judge?I would like to know the dis- '? lance that these witnesses live from the Court s House? U Mr. Smith, answers, and gives the informa-1 ion. j t Judge?Would you be ready to go on with 1* he trial if all the jurors were present, witli-jc mt reference to witnesses coming 011 the,1 ,rain ? |.l Mr. Ueuet?I can't say tit the present time. 1 vy *; . Ourwitnesses are notexpert, witnesses. They are to testify as to facts. Can't well go on \rithout them. Certainly coalil not go on without Mr. ltiley and Dr. Waddel'. I i?n sorry to cause delay. The other side caused delay last week, and we seek a little indulgence. The Judge?If I thought the witnesses were trifling with the Court I would send for them. Mr. lienet?Usually Court does not get under way until 12 o'clock on the first day of the Court, and they knowing this fact, no doubt were not impressed with the necessity of a promDt attendance this morning. The Judge?If we had other ca><cs on which we could employ the time of the Court It wduld make less diflerence. But. if we have to wait the trial of this case it will be just so much time lost. Solicitor?If we are not going on with this case, I would like to know the fact. It do not like to press this matter but if there is to be a continuance I would like to ascertain the fact as soon as possible. Should not like to delay because of absence of Mr. Illley and Mrs. Ferguson. It is now 11:15 o'clock. Mr. React?We are not asking for a continuance. I hope, since the Solicitor caused so much delay last week, that he will not press us now, The Judge?I assume all responsibility for what was done last week. I don't want to hoar anything more or it, The Judge?If motion is now made for delay, it must be to continue it over term. Sir Benet, could you ascertain within an hour if! witnesses are on the train ? Mr. Benet?We might go on and complete jury. By that time we could tell. The Judge?Call absent jurors. The Clerk?All are here but live. Absentees called. Three didn't answer. H. J. Kinard, (1. C. Moseley aud J. M. Richey. The Clerk?J. iM. Richey has left the State. The Judge?But two then are absent. The Clerk?Yes, sir. Mr. Banet?I have no desire to delay the Court, 1 will consent to go to trial if the State will admit testimony at last Court, in case our witnesses do not come. , Solicitor?We consent to that. Mr. Benet?Dr. H. G. Waddell, the stenographer informs me, will not be here in consequence of professional engagements. The Judge?Let Dr. Waddell be sent for, and let him understand that I make no reflection on bim by sending for him. How lar does he live from here? .Mr. Benet?He lives twenty miles, but I have arrangements to telegraph for him and get him at any time. The Judge?Is the State ready ? Solicitor?Yes, sir. The Judue?Is the defense ready, with the condition named by counsel? Mr. Benet?We are. The Judge?Do you waive formal arraignment ? Mr. Benet?We waive general arraignment, but put in a plea of not guilty because of unsoundness of mind at the time of the homi cide. The Judge?Mr. Benet let roe speak to you and Mr. Orr for a minute. Mr. Benet and the Solicitor then went forward and after a short while they returned to their seats, the Judge said : I prefer that the prisoner stand up, and proceed with the regular arraignment. Prisoner standing in the dock, the Clerk then proceeds to make the arraignment. . The prisoner stood In the dock during the arraignment. Mr. Benet stood beside htm at the gate. When I lie prisoner was asked to answer to the charge, he said : "Not guilty." Mr. lienet added: "Because of unsoundness oi mind at the time of the homicide. We desire to make a special plea, your Honor." When the prisoner announced his readiness to come to trial "by Cod and his country," the Clerk said two jurors were still absentone liH'.l gone out ot the State, but, the other would come by the train that evening. The Judge?There are, I believe, thirty-four members of the panel present. Call the roll again, Mr. Clerk, to be certain. The Clerk?Thirty-four Jurymen are here. Mr. Benet?I hope you will iill the panel before proceeding with a case so important as this. The Judge?See case of the State ngalnst Clyburne. The Solicitor?Two or three cases. State v. Dodson. Solicitor reads. Mr. I'.enet?We object, your Honor, because the panel is not full. The Judije?There is no authority for objecting because the panel is not full. The Solicitor?The maximum number is 36, but the law does not fix minimum number. Mr. Benet?It seems that this venire never was full. It is the prisoner's right to have a copy of the indictment and a list of the Jurors at least three days before he comes to - * ? ' ?. ^ Itiiir I II'llll. J II1N Veiliri' WH? IlKVl-I UIU1VU. iliu lan certainly prescribes tlmt thirty-six jurors shall form the panel. When t consented to go to trial it was, as I thought, with express understanding tnat the venire would be complete. We ask that venire be completed. The Judge?It is seldom that, the venire is lull, if the defendant expressed a willingness to go to trial under a misapprehension, that is a matter that addresses itself to the CourU Mr. Benet?It has been the rule in Court, I think, to have a full venire. The Solicitor?Last Court it was filled up because so many were absent. The Judge?I will not have the panel filled up. I will note your objections if you bo desire it. Proceed Mr. Clerk with the arraignment. The prisoner was thpn arraigned in the usual form, and the Clerk proceeded to organize the jury, by presenting members of the venire. The first juror was: H. C. Moseley?Prisoner requested that he be examined on his voir dire. He had not formed an opinion as to the guilt or innocence of the prisoner. The prisoner objected to him. J. E. lildrich, called?He said he had formed or expressed an opinion as to the guilt or innocence of the prisoner, but thought he could render a fair and impartial verdict. He had no bias or prejudice one way or the other. Mr. Benet?May it please the Court: It is just as well that at this point I should make a remark or two to your Honor on the subject of examinations on voir dire. This juror hns said positively that, he has lormed or expressed an opinion as to the guilt or innocence of the nrisoner. and he has added as positively that in spite of that opinion he can give the prisoner a lair and impartial trial. It matters not whether his opinion be that the prisoner is guilty or innocent?nor whether his opinion be for or against the State. I shall endeavor to satisfy your Honor that the fact to which he swears- -that, he has formed or expressed an opinion?ipso facto renders hiin incompetent to serve as a juror in this case. Let me read to your Ilonor our .Statute, Section 22(il, which guides the Court in this examination : "The Court shall, on motion of cither party in suit, examine, on oath, any person wno is called as a juror therein, to know whether he is related to either party, or has any interest In tiie cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein, and the party objecting to the juror may introduce any other competent evidence in support of the objection. If it appears to the Court that the juror is not indifferent in the cause, lie shall he placed aside as to the trial of that cause, anu another shall he called." The Court will perceive that the test of the competency or incompetency of a jui?or is, whether or not lie is "Indifferent." without leaning one way or another. Mr. Uldrich says he has formed and expressed an opinion as to Hie prisoner's guilt or innocence. Will the Court hold that he is "ind liferent?" "What is "tin opinion?" It is the motor power whicli i governs our mind or intellect. The mind is | actuated, controlled, guided by opinions. The j more intelligent u juror is, tlie more is He 111-: tluenced by liis opinions. Tlie unintelligent, inintl may be swayed by prejudice, bins, or i sympathy, but the intelligent mind, wnich forms its opinions only on good ground, and lifter mature rctlecliun, is swayed by its opinions only. Again, human nature is frail, and pride of opinion is stiong, and when your Honor asks mi intelligent juror, who has sworn ton form-j ed opinion, whether lie cannot give the deiendant a lair and impartial trial, there are very lew men, and these only of the highest: order, who will not answer that they could do I so. It is not uncommon for jurors when ask-1 rd this question, to regard U a reflection upon ' their intelligence and integrity, and they confidently answer, they e-an give the prisoner a i lair and impartial trial. lain happy to be! utile to submit to your Honor numerous au-l thorltics which bear me out, when I assert j that a juror who has formed or expressed! such an opinion is not "indifferent," and isj incompetent. I read from l Criminal Law Mairazine: "The lirst bill of exceptions states that upon the culling of the venire, C. II. Uai ksdale, one nf I lie veniremen, being asked by the Court j whether or not he had funned or expressed an j Dpiniini as t.o the uuilt or innocence of the I priM?ner, said that at lirst lie had formed a by-1 potlietical opinion, but had afterwards heard \ other evidencf which tended to weaken the [ pinion then formed, and that lie couI? not; say now that lie hail Mich an opinion that cvl-, ilonee could not remove it, but. thai he prefer- j red not tosjtasa juror, and that he could give; tl.e prisoner a fair trial. And thereupon the ; Court decided him to lie a competent juror. ! "It has been held in other States,by Courts of most respectable authority, that, when (lie: pinion of tiie juror is so tixed that it would require evidence to remove It, he is incompetent.and this upon t he ground that when lie nters the jury-box he Is not Indifferent, and I Hie burden is cast upon theaccusedof combat-' lug a preconceived judgment, of his ease; a | luirden from which the commonwealth isex-i :'inpi, and which is Inconsistent with the hu j mane spirit of the law. "in liolt v.People, I;? Mich. 227, Judge Cooley j Mild that in criminal cases, wherein, after a 'ulI examination, the testimony given upon aj luillenue leaves a reasonabledoubt of the 1m- j jiartialit.v of the juror, the defendant shall be ! ;iven the benefit of Ihedoubt. "I'poii this point nothingshould beleft to in- j ereneo or doubt. All the lests applied by the j Courts, all the inquiries made into the state J >f the Juror's feelings, are simply with a view ; if securing a tribunal competent to receive mil weigh the evidence, and render a verdict j lecordingly, unimpaired by prejudice or pre-1 loneeivcd opinions. "If there is a reasonable doubt of whether, he juror comes lip to this standard, that: lonbt. should be resolved in favor of the ac-! aised. "It is very true that in the present case the, ttror .stated that he could give the prisoner a air trial. Few men would be willing to ue-l knowledge they would not do the same thinjr.' < As wiis suiil by Judge Scott In Armstead's i Cas?, 11 Leigh, (Va.) 6o3, "however willing th? Juror might be to trust himself, the law will not irust him." i "The second bill of exceptions states that 1 James P. Hawkins, a venireman, being asked by the Court whether he hud formed and expressed any opinion as to the guiltor inno- < cence of the prisoner, answered "that he had formed and expressed a hypothetical opinion, i but that said opinion could be changed by evidence; that he had formed it from reading newspapers and from what he had heard, but could give the prisoner a fair and impartial trial." And thereupon the prisoner propound- i ed to him the foilowingquestions: "Have yon now a decided opinion in your mind ns to the guilt or Innocence of the prisoner, without evidence?" To which the juror answered: "I ' haven't a decide opinion, but rather a positive one." "Would it require evidence to remove the opinion you now have?" To which the Juror answered : "It would." "Whereupon the Court held the juror to be competent, and ac* cepted him as such." It seems to me. your Honor, that the doctrine of this Virginia case, in the light of the fact that circumstances therein contained !its this case of Mr. Uldrich, like a lid on a pot. But I will cite you other authorities. In the same artlcic on the right of trial by jury, In 5 Criminal Law Magazine, from which I made copious extracts In my argument before your Honor last Friday, I find the following doctrine laid down most positively,and supported in the notes by numerous authorities, from the Supicme Courts of nearly all the States, from Massachusetts to Louisiana, from California to Florida: "But the following rule probably has a few exceptions as any : The formation or expression by one of an unqualified opinion as to the guilt or innocence of the accused party renders such person incompetent to sit as a Juror at the trial of the party concerning whom such opinion has been formed. And another rulo of general application Is, that if the proposed juror has formed an opinion on tiie merits of the case, such as would require evidence to remove, he also is incompetent. "Itisalso the rule, In some of the states, that, if the opinion is formed from hearing the testimony as given in court at a former trial of the party, or from reading newspaper reports of the testimony so adduced, that he is incompetent, notwithstanding ttiat he may believe that he could render a vcrdict uuinfiuenced by his former opinions. "Same where the opinion is formed from hearing the testimony given at the trial of a a co-defendant, a.nd which the juror soys would, without countervailing evidence, be conclusive against, the defendent. So, though the juror may state that it would not., influence lilm in arriving at a eel-diet. It is also a cause of challenge that the proposed juror had sat in a previous ease involving the same questions of tact as the case to be tried contains, as the cose to be tried contains, as this would import that he had formed a fixed opinion. "But where the juror expressed the opinion that the defendant had killed the person for whose murder he was about to be tried, and nothing further was shown relative to his competency, It was held that a cnallenze for cause should have been allowed. Same where a Juror had read and beleved certain statements In the papers, and believed a crime had been committed, and that the persons named in the papers were guilty of it, and that If the prisoners were the same persons, he had an opinion as to their guilt. "Where there is asuspicion of bias, the court should itself be satisfied that the Juror is unbiased ; it is not enough that the latter is thus satisfied. If the court is In doubt, he should be rejected. But the exercise by the court ot Its prerogative to exrmlne the Jury does not prevent the defendant's counsel from reexamining them, he is entltleh to do this as a matter of right. "Where a Juror, on his examination, admitted that he had formed.an opinion aaout the case, and of so decisive a nature that It could not be chansred by any circumstantial evidence whatever, and which opinion he twice stited might bias the mind, but afterwards, through cross-intererogatioh by the court and the state's attorney, he is led to contradict his former statements regarding his bias, he may be properly challenged for the cause." What need is there for further authority? Do these cases not show that Mr. Uldrich is not "indifferent," is not competent? Like Mr. Uldrich, the Jurors In the cases cited, swore that they could give the defendant a fair and Impartial trial; but the Supreme Courts of all these States unite In saying that such Jurors are notcompetent; as is said inoneense, "the juror may trust himself, hut the Court cannot tru-t the juror." It would seem that when a Juror has announced on oath that he has farmed or expressed an opinion it is needless to ask him any further question. By that fact he is rendered Incompetent. m,?- rr ?.. T i Ills, your JIOIIUI, J? iuy |>woiblwii. a n.i.vmnde no bald assertion. I liave expressed no opinion of my own. I have simply read lo your Honor the decisions on this point of numerous Supreme Courts, which this Court nepd not be ashamed to net upon. The Solicitor?If the theory of the counsel for the defence were to prevail it would hardly be possible to pet ajuiAf to try this case. Every Intelligent man wlfb reads the newspapers lias some sort of an opinion, but they need not thereby be disqualified from sitting I as Jurors and rendering a verdict according to the law and evidence. All the Slate requires is a fair and impartial trhil, I will read, your Honor, an extract of the case of the Slate against Dodson, which isthe law of this State, and which is cohclusive. 16 S. C.: "The next question is whether the Circuit Stidge erred in allowing eertain jurors to be presented to the prisoners, who. when examined on their voir dire, stated that they had formed an opinion in reference to the case from what they had heard or sten in the newspapers, which, however, would not in the least influence their rninds as jurors; that they were not sensible of any bias or prejudice whatever, either for or against the prisoners, and would be governed by the evidence adduced in the case. The statute, after providing that the court shall, upon the motion of either party to llie cause, examine any person called as a Juror upon bis voir clire, de?!%.?* . i?T?* it nnnoo rd tr\ t.hfl t.hilt. nail , JL I JVl>|'|'wuia v/ ?>.V WW..... I the furor is not Indifferent in the cause, he i shall be placed aside as to the trial of that cause, and another shall be called." Gen. Stat. Cli. CXI. i'2'), p. 523. "This would seem to vest the power of determining the question of fact, as to whether the Juror wos indifferent, in the hands of the court called upon to try the case, and we do ! not see how this court could undertake to reI view such determination. But even were ! this not so, we see no error in the course pursued by the Circuit judge- Any other course would have the effect of excluding from the jury box, in any case of such magnitude or public interest as would be likely to attract, attention, t he very class of persons who would be best qualified to occupy that position, for in cases of that, character it would be difficult to find persons of ordinary intelligence who had not received some impressions in regard to a cit.se from what they had heard or read in the newspapers. Mr. Henet?The case in 16 S. C. just read by: the Solicitor, does not exactly cover this case. The report of Judge Hudson shows that the| impressions produced on the minds of the Jurors would not, they said, in the least alfect t hem in trying the Dodson case. The Solicitor's remark thnt the doctrine 1 contend for, Would exclude readers of the newspapers from the jury box is not happy. I wish your Honor to reflect on this fact?that thp county pa-i pers published full accounts of the evidence, tnken at the two preceding trials, as well as j the arguments of counsel and the Judge's charge. An Intelligent man, like Mr.Uldrich, who has read these renorts, as Mr. Uldrich j says he has, and has formed or expressed his [opinion as t'i John Ferguson's guilt or innocence, can hardly be regarded "inditt'erent," and we submit to your Honor that this Juror Is incompetent. Toe Juror, J. E. Uldrich, was again presented. Is not related lo either prisoner or deceased. nwt sensible of any bias or prejudice for or against prisoner. rourt held him competent. ^Defendant objected. In order that, our readers may understand, in a genernl way, the questions which the Court put to each Juror who was sworn on his voir dire, we append one sot of questions. With few exceptions, each Jnror was asked the same question : 1. Are you related by blood or marriacre either to tin; misoner at the Bur, Ferguson, or tin; deceased Benedict? Have you formed or expressed any opinion as to ttu: guilt or innocence of the prisoner at the Bar, Ferguson? 3. Upon what is that opinion based ? ). Are you sensible of any bias or prejudice In tliis case, cither for or against the prisoner at the Bar, Ferguson? 5. Notwithstanding the formation of any opinion from reading the newspaper accounts and fr<>m what you have heard, can you, or can y< u not, go upon the jury if called upon to do so, and render a fair and impartial verdict, according to the law and testimony as given here? James H. Nickles?Sworn. W. H. Mays?Had formed or expressed an J opinion in t his case. Judge stood him aside, i J. 11. Milford?Prisoner objected. Foster W. Wrisrht?Sworn. James Fife?Prisoner objected. Daniel Thomas?Prisoner objected. J. It. Ellis?Sworn. A. McNeill?Didn't, think he could uive n fair and impartial verdict, and the Judge ordered him to stand aside. A. S. Osborne?Had read the newspaper re-1 nni'N nrul timl formed an opinion. Didn't i think he could give a fair and Impartial trial, j The Conn ordered him to stand aside. ?*. A. Tribble?Had formed an opinion after reading newspaper reports, and didn't think! he could give a fair and impartial trial. Jlcj was not wiinted as a juror. John II. Davis? Had formed an opinion which was predicated on the newspaper reports of former trials, and thought he could t not give a fair and impartial verdict. It was | thought that the juror misunderstood the' question as to giving a fair and impartial ver-1 diet, atul the question was repeated when hei said: "I didn't understand you at first," i and said he could do justice in the case. Mr. I tenet protested that, this juror was not "indifferent," arid claimed that the Court.| should order him to stand aside. The Jtulgc! was of a different opinion, and had him pre-' sen ted to the prisoner, who had no difllculty in objecting to him. L. It. WiNon, sworn on voir dire. The Judge?Are you related either by blood "; " ' i~ V - ?\v" 1 v'/-: .* '' r or marriage to tlic prisoner at the bar, Ferguson, or to the deceased Benedict? Juror?No, sir. The Judge?Have you formed or expressed !wy opinion as to the guilt or innocence of the prisoner at the bar ? Juror?I have. . The Judge?Upon what did yon base that opinion ? Juror?I heard tho other two trials and I read the newspapers. The Judge?And it is upon that, that yon based you opinion ? Juror?Yes. sir. The Judge?Are yon biased or prejudiced either for or against the prisoner at the bar? Juror?No, sir. The Judge?Well, sir, can you go rtpon the jury and render a fair and impartial verdict according to the law aud the tmlmony as given here ? Juror?I can, sir. Mr. Benet slaled that this Jurot came to him on the street the other day, and told him that lie was not for Ferguson and said, "I think he is guilty." I did not know lie was a juror, and told him not to talk to me as I was counsel in the case. Juror?I did not tell you "T Was not tot Ferguson." I told you that If Mr. Ferewon's friends expected me to go Against the law and the evidence, then yon were mistaken. Mr. Benet look the stand and said : So far ns I can recollect, for it was a very short con vernation at the corner of the Court House, for he himself came forward. I did not know who he was. I thought L. It. Wlldon wus nn old man. I have no recollection about him saying anything about "the friends of Ferguson;" but I recollect that certain Impressions lelt on my mind was that^he said he thought Ferguson was jruilty. Juror?I made my statement for this reason The Judge?State what it was, not your reason. Juror?I said this: As I came up to Mr. Benet I said: I am uot the man that you are look 1 m; for The Judge?State what occurred. Juror?I told him that I did not want to Rerve on this Jury, and that if I did I would certainly go according to the law and the evidence, and for that reason I did not want to serve on it. The Judge?Stand aside. T.W.Mars, put on his voir dire by State. Presented. Stood aside by the State. P. A. Covin, put on his voir dire by defense. Thinks he can't give un Impartial trial. Stood aside by Court. J. M. Latimer, put on his voir dire by dem-ilnntoil tr? liv ilpfenilnut. N. \V. Kay?sworn. William Wilson?Had formed an opinion from reading the newspapers, but was not sensible of any bias or prejudice, nnd said he could render a fair and impartial trial. Sworn. W. T. Speed?Sworn. J. F. Asncw?Had read reports of trial, nnd formed an opinion; was not sensible or any bias or prejudice oneway or the other, but was afraid he could not give a fair and impartial verdict. The Court excused him from sitting on the case. J. M. White?Like the preceding jnror, had read the reports, formed an opinion, out without prejudice. He could not give a fair and impartial trial, and his services were not needed by the Court. J. A. Crawford?Went through the same course or reading, was not biased, and possessed all the qualifications of a good Juror, but the prisoner did not enlist his cervices. G. W. Andrews?Was equally well informed as to the facts in this case, and possessed tbe necessary qualifications of a juror, but the prisoner objected to him. J. H. Link?Was objected to by the defendant. It. F. McCasIan?Had formed an opinion from the general publicity which had been given to the matter. When asked if he had any bias or prejudice, replied: "None in the world." When asked if he could give a fair and impartial verdict, replied: "I can." The defendant concluded to excuse him from the service. John Lyon?Thought he had bias or prejudice in the case, and the Judge excused him. H. Burnett?After being questioned, was sworn. W. L. Bowman?Possessed tbe requisites of a juror, and was sworn. T. G. Bowen?Had prejudice, and could not sit as Juror. I. N. Alexander?After being examined, was objected to by the defendant. 55. W. Cochran?The State objected to blm lor cause. This juror is a witness in the case. W. H. Moore?Said he had read the county papers, and said: "I am afraid I could not render a fair and impartial verdict." W. R. MeAdams?Like nearly all |urors who had preceded him, was sworn on his voir dire, (to make true answers to all questions that might be put to him by the Court) was sworn. The Clerk here announced that the punel was exhausted. The Judge then ordered thnt those jurors who had been ordered to stand aside by the State, might be re-called. VV. H. Mays?sworn. T. W. Mars?The State peremptorily challenged him. THE NEW VENIRE. The XnmeK of Ten Additional "Good and Lawful Men," Who are Drawn to Try the Cnne. xnc panel uicd ueum caiihuhicu, h ??- > agreed that a .special venire of len extra Jurors should be drawn from theseven mile box and the Jury Commissioner, Clerk and Sheriff were, after the Solicitor had drawn the order, directed to proceed with the work of drawing the extra Jury. The Judge then said to the Jury that they must, not disperse. I shall kwp you together, gentlemen; bull shall impose no unnecessary hardship upon you. The .Sheriff has been Instructed to attend to your wants. He hus made arrangements to accommodate you at night at the notei. When the crowd has dIspersed you may have the liberty of the Court room. Two bailiffs were sworn to take supervision of the Jury. The Clerk announced the following named citizens who had been drawn assurors : Tilos. W. McCoru, w. J. uicney, J. H. Anderson, J. A. Richey, Hiram Cromer, Sanders Urn wford, A.C.Smith, R.C.Wilson, J. C. Miller, George Shllllto. A recess was then ordered until half-past three o'clock. THE DIFFICULTY IN SECURING JURORS CONTINUES. Many arc Presented, bnt Few are Sworn?The Judg-e's Mistake <in to wliat a Juror had Said?Hi* Correction of the Consequent Erroneous Itnliny?The Panel Exhausted. Monday Afternoon. At half-past three the court reconvened. The Sheriff repor ed that four of the ten extra Jurors had tieen served. The Judge asked if Counsel would go on or wait. The attorneys lor the defence said they would prefer to wait for the whole number. At ten minutes to 6" o'clock court stated that eight of the ten Jurors had answered. That A. C. Smith was drawn from the seven mile box. bnt C. A. Smith was served. After some discussion C. A. Smith was held to be incompetent. J. A. Richey was reported sick. Eisiht were found to be present. Counsel for the defence said they were ready to go on. The Judge said that there was a man on the regular panel, named Kinard who he learned had Just come Into Court, and desired toknow if he should be called. Mr. lionet thought as he was not here at the beginning of the irlal tliat ne snouiu not ou considert-d as n Juror on this case. The Solicitor, misapprehending what Mr. Benetsaid, expressed his willingness to have Kinard called before the new venire. Mr. Benet?Beg pardon, but we object. It was determined not tocall Klnard. The Clerk proceeded to call the new venire: Sanders Crawford?This juror is of intensified midnight, blackness. The Jiuige said ho hardly thought it necessary to ask the first question, which had been askeu of the preceding jurors. He therefore skipped that interrogatory, and began to enquire into tlie state of that citizen's mind on the momentous question then before the Court. His mind, unlike the minds of various white jurors, had not been biased or prejudiced by *! " l'".? ?l>? Iimvsnnivrs. nnd. as far as answers in questions couid indicate, he would have made ;v splendid juror, but the prisoner objected to him sitting on his wise. George Shllllto was called upon to lny his hand upon the book. The general talk about the case had caused him to form an opinion, but he had no bias or prejudice whatever for or against the prisoner, and could give him a fair and impartial trial, but defendant objected. \V. J. nichey, is a colored citizen whose complexion was not so marked as was that of Sanders Craw lord. The Judge put him through all the usual questions. He seemed to be splendidly qualified to give a fair and impartial trial, but ihe Solicitor gave him the opportunity of standing a?ide. J. l.'hnuney Mi Her, sworn on voir dire. The Judge?Are you related by biooil or marriage either to the prisoner at the &ar, Ferguson, or Benedict, the deceased ? Juror?No, sir. The.I mine? Have 3*011 formed or expressed any opinion as to the guilt, or innocence of Ferguson, the prisoner at the bar? Juror?I have. The Judge?Upon what is that opinionbased ? Juror?That he is guilty. The Judge?IIow did you form that impression ? Juror?From rumor. The ludge?Are you sensible of any bias or prejudice either for or against the prisoner ? Juror?I am not. The Judge?Well, it is for you to say; can you or can you not go upon the jury in this case, notwithstanding tho rumor that you have heard, and render a fair, impartial verdict according to the law and the testimony given here? Juror?I can. The Judge? Prceeat the juror. . : - - . , v ' ^ ii i i r?^?? 4 Mr. Benet asked if that answer of the Jurof as to bis guilt was not sufficient to staud hint aside. The Judge?I did not ifriderstand him to answer us to his guilt. I Will go back. Has .Juror formed or expressed any opinion urf to the guilt or innocent of the prisouer at the bar, Fergusou ? Juror?I have. The Judge-How have you arrived at that opinion? Juror?From public-rumor. .? The Judge?Have you any bias or prejudice for or against the prisoner at the bar? ? Juror?I have not. ' ., The Judge?Can you or can you not go upon, the jury iu this case,' notwitnsiandlnK tbe rumor that you have heard, and rendfr a fair and Impartial verdict according to the law and the testimony given here? Juror?lean. . . , v The juror was presented a'nd objected to by defendant. . .... [Notk.?We learn that the attention or <h? Judge having since fceen called to his misunderstanding of Mr. Miller's testimony, imme uizueiy iii^iru^icu iuc w ?iuAy It appear in the minutes of the proceedings that Mr. Miller had been stood aside by the Court, and to credit the defence with one more challenge. Tb?!defence, with this credit,1 lacked live of c'abaustlng their right of challenge.?Ed.] J. li. Anderson?Sworn. It. CWIlson was then called and put lite hand upon the book. Judge?Are you related * by blood or marriuge to the defendant Ferguson, or the deceased Benedict? Answer?I am. Judge?Stand aside. lllram Cromer, colored?Defense objected. Thos. W. McCord?Examined 011 vuir dire at request of State. Notwithstanding tbe fact that he had lallen under the influence of newspaper reports, and had formed some opinion of the case, he thought he could give it a iulr and Impartial consideration, and render a just verdict. Tbei Stale did not care however, to utilize him at that time for that purpose and therefore ordered him to staud aside. . <v: ' YV.J, Rlchey, colored?Was now recalled,but the prisoner excused him from farther attendance on this case.j Thos. YV. McCord, was recalled-State challenged him peremptorily. The Clerk here, announced tb&t the panel1 was exhausted. , ' NEED FOB ANOTHER VENIRE. Mix Jiore jurors urswn ?- Auj?nru> in en t or Court. The second ixmel being now exhausted,? an order for another venire of six jurors froir/ the seven mile box was made at 6:30 o'clock. The Clerk announced the following, as the' new venire: > E. F. Parker, T. W. Morton, W. J. Mi I ford, James H. Walker, Samuel Abies, Thomas Sutherland. The Court was now adjourned Qntlt ten! o'clock Tuesday morning. The Court roomhad been filled all day with spectators^ and a* general rush was made fos the door. GETTING READY FOE TRIAL. . . , x ;...i /fa Completion of the Panel?Argument to Grant Defence tbe Last Word?' Motion Refused. Tuesday Morning, Feb. 9.1886, Court convened at 10:10 o'clock. Attendance of officers and at torneys the Hume as on yes* terday, except Clerk Zcigler, who whs absent, on account of sickness. The Judge ordered tbe roll ot Jurors that were sworn yettcrday for the trial of this case to be called. All weie. . present. The Judge tben directed the Sheriff" local! the roll of the extra venire which had' , been drawn yesterday afternoon. All of the7 new venire were present, Except T. W. Mor- ' ton. Waiting his appearance the business or the Court was suspended. T. "W\ Morton ap ^ 1 A .?tAt/SAlF peareu so uuuuit-s unn ten u viwn. Judge directing that the drawing of the Jurors!should begin, it was discovered that Master* Eddie Mcllwaine, who had been taking the names out of the hut on the previous dajv was absent. A further delay of flveminutes* ' occurred. Thos. Sutherland was called and sworn on.* 1 his voir dire. He had expressed an opinion off '. this case, which opinion had been formed# from reading the newspaper?. He was not, however, sensible of bias or prejudice for or against the prisoner. Upon being sliced 1 the Judse : "Notwithstanding the fbrmotiotk ' or an opinion from reading the newspaper accounts and from what you have heard, can you, or can you not, jro upou the Jury, ao?l rentier a fair and impartial verdict according to the law and testimony, a* it may be glveii i In the trial of this case?'' the Juror replied : "Yes, sir; I think I could." He was present-' ed and sworn. Wtien the last juror had been sworji, the' Judge directed that the officers of the Court procccd to call and count the jurors. The Assistant Clerk called the name.", and theShpr-' ill'counted. Thepauel was full ami all sworn, as follows: Jnrors Sworn to Try the Caae. J. H. Nichols, H. Burnett, Foster W. Wright, W. L. Bowman, J. It. Ellis, W. R. McAdama, N. W. Kay, W. H. Maya, Willlum Wilson, J. B. Anderson," W. T. Speed, Thomas Sutherland. After the arraignment, which wtu? in the us-* ual manner, the Judge directed ine jurymen to retire to the room and elcct one of their number foreman. William Wilsou ww chosen loroman. The Judge?ald : "The Jurors on the regular venire, are excused, not discharged, uutU .. Thursday morning." Upon enquiry as to whether the pay of jurom would bo stoppedv the Judge said that It would not. < Mr. Benet asked the Court, as a matter of kindness to the prisoner, that he be allowed ' to sit by his eouoscl, whlchxequest wuagrauted. e The Solicitor then called the witnesses for the State. Hcttie Belton did not answer. The1 Sherif! was directed to have her brought lnto> Court. The Solicitor announced that he would not delay tbe case on account of her absence, but would not close without her presence. The defence then called witnesses on their , side. The Judge instructed bailiff not to allow persons to sit on bench next to Jurors or to stand near to them. Mr. Benet then made a motion to be allowed to open and close the argument, and quoted many authorities in civil actions, wbicn, reasoning by analogy, would support his motion, but under the circumstances we reproduce on' ly very imperfect notes of his speech. As we understood, he said,substantially : 1 would like to renew, your Honor, at this term of the Court, a motion which I made at a former trial of this case before Judge Wallace. ItiH but fair, your Honor, ti say that he refused; that motion, but a brother Circuit Judge does not make authority to govern you in the coui sideration of the matter. Our special plea admits the State's case as to all the facts and cirrumstances of the killing. We1 there-fore assume the burden of proof. ' The only issue raised is this: Was tire prisoner <u sound mind at the time of the homicide? Wo make no denial of any of the facts. We admit that on the evening of the day beforo Christmas in 18S4, that this prisoner aid go into Auerbach's store, and with a pistol tn bifr ' hand did kill Arthnr Benedict. We admit nil the circumstances as proved by the .State'* witnesses. The Indictment charges, however, that he did so wilfully, and with moiice aforethought. This we deny. Your Honor knows, that the presumption is, that there was malice in the kilting, but only a man of sound' mind can commit crime. If that is the law,, the question is the one of unsoundness of" mind at the time of the homicide. We put In a plea of not guilty, because of unsoundness ? of mind. We think we are entitled to operc and close, and would submit 58. C.Brown v. Rirkpatrick, to support our claim. It is truethat was a civil ease, but the rule should certainly apply in a criminal case. Mr. Benet further proceeded at lenctn toaraue the point, and to quote numerous authorities in civil I cases, which, reasoning by analogy,, would | support his imXlon. The Solicitor, in reply, thought the pleadings in the case and the argument to sustain tho motion were entirely Irreconcilable. Cbua-sel I for defence proposed to admit the allegations i contained in the Indictment of maticerbut claimed it was only formal veroiaije. iiiHin-u is a fact to be proved. Insanity is nteo .t>Met to be proved, tlic an me as an ulilii or a case of self-defence is proved. If lie proposes to offer a plea of "Insanity," as a defence, he must offer testimony to prove the fact. 18 S. C. 5ls: Mr. Benet replied to this that the allegations in indictment were simply on the presumption of sanity, if he were insane ha could not be charged with malice. Ii he is found insane all these charges fly to the wind. We admit all that Mr. Kiley; we admltall i that Mr. Hammond, the intendant. of the : town, says; weadmitatt that the negroes say. I These are simple facts. We do not admit adverbial allegations of malice as facts. If we ! did, it would he murder. We admit the klll! ing, but not the murder. We assume burdem of proof and ask to open and close. If we : were to eiftcr general plea of guilty we would j be gone, but this is a special plea. ; The Judecsaid: I hold that the .State has i the rijrht. to open and close. I will note your ; exceptions, Mr. Benet, if you desire. | The State proceeded to put. hh wimiw^w ?>u 'thestand. William Riley, town marshal, be! ing sworro first. Other witnesses for the State ' followed'in quick succession, and much in j the order in which they were sworn at the 1 previous trials. At six o'clock last night j nearly all the witnesses lor the defense had ! been sworn. The State's witnesses In reply j will be heard this morning. We believe ?he I testimony, so far. is essentially the same as , heretofore published in the Press and Banner, j though there arc some Immaterial differences | in the evidence of some o( the witnesses for [ the del'cucc.