THE KALL CASE
IS
C0I1IED
Defendants Said Didn't Know
State's Purpo:e
ARGUMENT WAS BRIEF
Continuance Granted on Ground that
Defendants Had no Time to SUm-mon-Witnesses
Needed True Bill
Returned Yesterday Morning.
Case Set for January Term
- er
The grand jury yesterday
morning returned a true bill
against J. C. King, L. R. High,
Jack Peele and W. F., Durham,
state hospital attendants, for
the murder of Thomas H. Nail,
the patient from ; Chatham
county who met his death in an
attempt to escape from the asy
lum. ''. .
Yesterday afternoon the case
was continued on motion of the
defendants, granted by Judge
Justice after brief argument, on
the ground that they did not
know until this morning wheth-'
or not a Din. ior muraer
would be presented by the so
licitor, and had not summoned
expert witnesses considered ma
terial to determine the question
of cause of death,
t The case is now set for the
second Monday of the January
- term of court, and the defend
ants are under bond in the same
amount agreed upon at the ha
beas corpus proceedings before
Judge Hoke, $1,000 each. -Foreman
D. H. Smith of the grand
Jury yesterday morning brought in for
,he jury, a true bill for murder against
I. C. King, L. R. High, Jack Peele and
W. F. Durham, th6 four state hospital
attendants charged with the killing of
Thomas H. Nail, the patient - who lost
bis life in the attempt to escape on
"August 24th last.
The jurors for the state, present that
the four attendants "feloniously, wil
fully and of their malice aforethought
did-Mil and.murder Thomas H. Nail."
The witnesses examined before the
grand jury were J. T. Rowland, J. R.
Chamberlain, Lee Alston, E. W. Gai
ther, Dr. T. M. Jordan, DP. J, N. Tay
lor, J. P. Massey and F. P. Brown.
The 'case had been set for trial yes
terday, and when it was called imme
diately after court had' reconvened at
3 o'clock from the dinner recess the
four defendants and all the counsel
were at the bar, Maj. H. A. London
and Mr. R. H. Hayes of Pittsboro, as
sisting Solicitor Armistead Jones,
Judge T. .33. "Womack representing the
executive department of the state, and
for the defense Maj. S. G.,Byan, Col.
t r L. Harris and Mr. Charles U.
Harris, ex-Governor C. B. Aycock rep
resenting King, High and .Peele, and
Col. T. M. Argo -and Mr. Elmer M.
Shaffer and Mr. James H. Pou and Mr.
Thomas S." Fuller appearing for Dur
ham.. There was a large crowd in the court
room, persons standing several deep
around the railing of the bar, besides
. all the scats being filled. '
First of all, Solicitor Jones stated
that he would not try the defendants,
for murder in the first degree, but that
he would prosecute and insist upon a
verdict for murder in the second de
cree or manslaughter, or any other less
offense. He then announced that the
state was ready.
Colonel Argo, for the defense, then
addressed the court, saying that the
defendants were not ready for trial at
this term of court. There had been,
he went on to say, no preliminary in
vestigation except the ex-parte one be
fore the coroner's Jury, as a 'result of
which the defendants had been com
mitted to jail. There had been another
ex-parte investigation before "the board
&f directors of the state hospital, at
which they arrived at a different con
clusion. So, argued Colonel Argo, the
matter was in a state of great uncer
tainty as to what kind of a .charge
would be made, if indeed any at all.
The defendants had been in the dark
as to the purpose Of the state until the
bill had been returned by the grand
Jury that very morning. ! They did not
know what witnesses would be neces
sary. They had not been', informed,
possibly because the officers of the
'itate were not themselves able to de
termine, what course they would pur
lue. As it was now, the defendants
would need the same character and
number of witnesses as if the billr were
for murder in the first degree. They
would have to have expert witnesses
from different parts of the state, and
also witnesses from Chatham county,
neighbors of Nail, and other witnesses
from the institution itself would be
necessary. It was impossible to get
Ihem here at this term of court.
For these reasons the defendants
nsked his honor to continue the case
tntll the January term of court. They
tould, he thought, easily give bond.
Judge Womack, replying for the
itate, said that the state did not de
ire to rush any one charged with a
jerious crime into trial without due
lime for preparation put he did not
sonsider that the cases suggested came
within the rules prescribed 'for , con
tinuance of cases.. Consequently the
matter was directed to his honor's, dis
cretion. , . r - . I -
Judge Womack then - went onto, re
call the facts in the- case. The homi
cide had occurred on the 24th of Au
gust. Some two weeks later the de
fendants had been committed to jail
upon the strength of the verdict of the
coroner's jury that Nail had come to
his death by blows inflicted by the
defendants. On September 16th they
had been admitted to bail by Judge
Hoke, with the consent of the solicitor.
There had been no intimation whatever
that they would not, be tried. A Jury
of their countrymen had found proba
ble cause for their conviction. '
Moreover, the defendants had had an
unusual advantage' A month ago they,
had the evidence upon which the state
relied.
As for the investigation before the
asylum directors, the directors had de
clined very properly to pass on the
question of the innocence or guilt of
these defendants. They had not, as
his colleague had said, come to a dif
ferent conclusion, if there was any
legal ground for
course the state expected his honor to'
do everything to secure a fair trial, but
none of the reasons advanced appeared
to come within a bow-shot of legal
ground. ,
Colonel Argo rejoined by saying that
tne board of directors did
the affirmative conclusion that thn riA-
ceasfed came to his death , by violence,
luuim oy tne testimony of experts
that he came to his death by other
means than violence. "If that's not
different, I don't know what a differ
ence is," exclaimed the colonel. "We
had reason to. believe the state would
adopt the testimony of those nine ex
pert witnesses. All this is opinion evi
dence anyhow, or expert testimony.
There , was no eyo witness save the de
fendants. We did not know, this bill
would be found. Inasmuch as homicide
is charged this expert testimony is
absolutely necessary and material, and
we can't get it here at this term of
court. Some of those witnesses testi
fied positively that it was impossible
from the conditions found after death
for violence to have caused the man's
death. Is that material evidence? Yet
we have not summoned those witnesses."
Solicitor Jones said that In justice
THE MORNING POST, FRIDAY, SEPTEMBER, 30,
TEXT OF THE JUDGMENT
Judge Justice's Decision in
Mandamus Case
Payment of Poll Tai Not a Neces
sary Qualification to Enable a Pe
titioner to Sign Petition Asking
for an Election
Judge Justice yesterday signed the
judgment issuing a mandamus to com
pel the city of Raleigh to hold an elec
tion on the question of dispensary or
saloons. The text of the judgment is
as follows:
North Carolina, Wake Count y In the
Superior Court, before M. H. Justice,
judge, holding thefcourts of the Sixth
Judicial District, September 25, 19C5.
The State ex rel. J. M. Pace, W. C.
Iorris and W. J. Ellington, petition
ers in their own behalf and in behalf
of the other petitioners, and -3. M.
Pace, W. C. Norris and W. J. El
lington, 'petitioners in their own be
half and in behalf of other petition
ers Plaintiff.
against
The City of Raleigh and the Board of
Aldermen of the City of Raleigh and
James I. Johnson, Mayor, and Wm.
Boylan, Wm. B. Grimes, W. A. Coop
er, Ed Hugh Lee, Geo. M. Harden,
H. W. Jackson, L. G. Rogers and J.
S.' Upchurch, the last eight constitut-
'. ng the Board of Aldermen of the
City of - Raleigh, Defendants.
JUDGMENT.
This cause coming on to be heard
by his honor, Michael H. Justice, judge
presiding in the courts of the Sixth Ju
dicial District, in Chambers at Raleigh,
to himself he would say., that he had -on the 27th day of September, 1905,
been approached by Mr. Pou and also i upon the pleadings and the admissions
by Colonel Argo and asked what sort j of the parties, and it being admitted
of a bill he would send. He ! had told ; by the parties, plaintiffs and defend
them that he could not say, but had ants, that the only question to be con
said frankly that he would not send a sidered in the case and arising upon
bill for murder in-the first degree. He the pleadings is one of law to-wit:
thought that one of them had asked Whether under the law, Ch. 233, Sec.
him if he would send a bill for mur-! 7, Laws 1903, the requirement as a
der in the second degree, and he had qualification to vote, to-wit: That no
said yes. person shaU be entitled to vote unless
The solicitor said it seemed to him he shall have paid his poll-tax on or
like any other case. They must have before the 1st day of 'May of the year
known a bill . was going to be sent. ' in which he offers to vote should be
They had had some days at least in applied as a test of the competency of
which to subpoena witnesses. He un- j a petitioner to sign the petition spe
derstood that 'hone had heen sum-ined in the complaint,, and it being
moned.
ent. Two of those were from Raleigh.
Miv Boushall, -who is a member of the
executive committee and served - this
yza,v on the nominating committee
also, and Mr. John C. Drewry, state
agent for the Mutual Benefit Life In
surance Company of New Jersey.
The delegates were magnificently en
tertained in Hartford. They were ten
dered a reception by the local associa
tion, an automobile ride over the city
and; parks and to the country club
where they had luncheon; a theatre
party and a grand banquet in Foot
Guards hall where excellent speeches
were made on the subject of insurance
by distinguished guests. Mr. Boushall
also participated in a banquet given
at the Hartford club to the general
agents of the Aetna Life. There were
about sixty companies, the most
prominent in the United States, repre
sented in the convention. The central
thought was social and one of the pur
poses is to uphold and foster the
high standard In 'character and life
set by these companies for their offi
cials in the states. A notable feature
was the presence of a delegation rep
resenting the New England Women
Life Underwriters' Association of Bos
ton. Special courtesies were shown
these ladies.
The officers elected for the year
were: President, Charles W. Scovel of
Pittsburg; first vice president, George
Benham; second vice president, R. P.
Shedden of Atlanta; third 'vice presi
dent, F. 33. McMullen of Rochester,
N. Y. ; secretary, Ernest J. Clark of
Baltimore; treasurer, Eli D. Weeks of
Litchfield, Conn.
Mr.. Jones went on to say that he
further admitted that if it should not
be so applied, under the said law, the
had not read the report of the board i petitioners number more than one-third
of directors' just published yesterday of the registered voters in the City of
morning, but it seemed that the board Raleigh, who were registered for the
had absolutely eliminated the question ! preceding- municipal election.
of the innocence or guilt of these de
fendants.
NOW THEREFORE, after hearing
the arguments of counsel for the re-
Ex-Governor Aycock next spoke for pej" J1""?' I? JJSSS11
the defendants. He said he did not .V .-u 7 u
!.rnw tVlo4. Uar.A ,,roc. Mr, M . THE COURT, that the payment of poll-
Know that there was ever any real ; , ,
Tt ; iua Lyjk ixic picviuuo y cell un ui uciuui
j . -t r - r ' H J. '
me 1st 01 iuay, iyuo, . is not. a neces-
legal cause for continuing a case
was always a matter in the discretion
of the judge. This case presented un
usual features. It was the first in
stance in his experiencei of nearly a
quarter of a century in the practice of
law that a prisoner had been commit
ted to jail by a coroner without a pre-
sary qualification, under said Sec. 7,
Ch. 233 of the Laws of 1903, to enable
a petitioner to sign the petition spe
cified in the complaint: it is further
considered and adjudged that the pe
tition set out in the complaint was
signed by more than, one-third of the
llminary investigation by a justice of , registered voters of the city of Raleigh
ma peace. xne aeienuanis naa naa
no opportunity to cross-examine the
state's witnesses. Up to this time
they had had no opportunity to be
heard and no time to examine the evi
dence brought out before the board of
directors.
"In the meantime," continued the
ex-governor, "the governor has joined ORDERED AND ADJUDGED that the
hands with the judicial department of j Board of Aldermen of the City of Ral-
In Memoriam
Resolutions by the bar of Richmond
county, upon the death of John D.
Shaw, Jr.: , "
Resolved, That the death of John D.
Shaw, Jr., is a distinct loss to the
county of Richmond. From his early
boyhood to his untimely death,vhis life
was spent in our midst, being removed
from Richmond county only by the
creation of Scotland in 1900. For twen
ty years he was a practitioner at the
bar olj this court. He was recognized
as one of the ablest lawyers in this
sectioiji of the state. His painstaking
care, his zeal and enthusiasm, com
bined with a high order of ability,
won him a large and lucrative prac
tice in this and surrounding counties.
As a counsellor he was safe, as a trier
of causeshe was indefatigable. His
bereaved family have the sympathy of
the entire bar of Richmond county in
this their great loss.
Resolved, That the foregoing resolu
tion be spread upon the minutes of
the court, and copies thereof be sent
to the family of the deceased, and to
the local and state papers for publica
tion. ' P. C. WHITLOCK,
L. B. WILLIAMS,
. " "' A. S. DOCKERY,
J W. M. KELLY,
. 1? JNO. P. CAMERON, -
Committee.
Voluntary Bankruptcy
: A proceeding in voluntary bankrupt
cy was instituted yesterday in the fed
eral court, the bankrupt being S. W.
Harris & Co. of Washington, N. C.
The liabilities are stated to be $3,800
and the assets $1,100.
Better Than a Plaster .
A piece of flannel dampened with
Chamberlain's Pain Balm and bound on
thej.affected parts, is better than a plas
ter, for a lame back and for pains in ths
slCe or 'chest. Pain Balm has no su-
; who were registered for the preceding
j municipal election therein, and that
Isaid signers petitioned for an election; j as a llnlmerft for the relief of
. I . J ' 3 J AT 1 1 i. I
, as speciueu m saiu ijclillou, hiili i-xiai.
said petition contained more than tho
requisite number of petitioners under
the provisions of said law of 1903.
IT IS FURTHER CONSIDERED,
the state. Your honor understands
what a thrill of horror goes through
people when it is heard that an insane
person has been badly treated. And
some of our newspapers have been ac
tive in arousing public sentiment in
this matter. It was not needed, but
nevertheless those papers: have pub
lished accounts that stirred the peo
plfe, and they are uncorrected by the
full publication of the proceedings of
the second investigation. I am per
fectly confident of th4 innocence of my
eigh forthwith assemble, and that they
forthwith order an election to be held,
after thirty days' notice, in the said
City of Raleigh, to determine whether
bar-rooms or saloons shall be estab
lished in said city under the high li
cense tax provided by flie present char
ter of said city, said election to bo
held and conducted in accordance with
the rules and regulations which are
now provided by law.
IT IS FURTHER CONSIDERED
AND ORDERED that the Clerk of the
clients, and yet I am afraid to go to i Superior Court of Wake County cause
trial now. I distrust anybody . when J certified copies of this judgment and
the heart is beating fast in sympathy j order to be immediately served cn thts
with a dead insane person. I am op- j Mayor a nd Board of Aldermen of the
posed to lynch law, but I am more ; City of Raleigh.
opposed to. hastening a man to a legal! AND FURTHER, IT IS CONSID
trial before time has been given to ERED, ORDERED AND ADJUDGED
reason calmly and examine into the that the plaintiffs recover, the costs
facts, for the latter is a travesty on j of this action.
the law itself. The governor did not ! MICHAEL H. JUSTICE,
act until yesterday in appointing his Judge Holding Courts of the Sixth
representative in the case. Why'then, I District.
should be hurried?" i The following agreement was also
Judge Justice then stated that, as the ' filed in regard to the appeal to the su
ripfpnrlnnts did not know, what kind' preme court:
of a bill the state was going to pre-
deep seated, muscular and rheumatic
pains. For sale by W. G. Thomas,
Robert Simpson and Bobbitt-Winne
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IS w
h in
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Trinity Park School
A first-class preparatory school. Certificates of graduation ac
cepted for entrance to lexihig Southern colleges.
Best Equipped Preparatory School in the South
Faculty of ten officers and teachers. Campus of seventy-five acres.
Library -containing thirty thousand volumes. Well equipped gym
nasium. High standards and modern methods of instruction. Fre
quent 4 lectures by prominent lecturers. Expenses exceedingly mod-
erate. Sven years of phenomenal success.
For catalogue and other information, address, -.' -
J. A. BIVINS, Headmaster,
DURHAM, N. C.
22
LITTLETON FEMALE COLLEGE
Splendid location. Health resort. Over 200 boarding pupils last year. High
grade of work. High standard of cultureand social life. Conservatary ad
vantages in Music. Advanced courses in Art and Elocution. Hot water
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Remarkable health record; only one death among pupils In 23 years.
Close personal attention to the health and social development of every puplL
High standard of scholarship. All pupils dress alike on a.'l public occasions.
CHARGES VERY LOW.
24th Annual Session will begin Sep tember 18th, 1905. For catalogue ad
dress, -
r REV. J. M. RHODES, A. M.,
PRESIDENT. Littleton. N. CV
Office and Yards Foot of Jenkins St. All Phones 434
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sent, and therefore had not summoned
material witnesses, he would continue
v.Q p-icp nnfil the January term.' He
tllV W w . " -
The State ex rel. J. M. Pace and others
vs. The City of Raleigh and otiiers.
It is hereby agreed that the record
in the appeal in the above entitled case
did not think any wrong or harm could j shall consist of the pleadings and judg-
possibly come of the continuance.
Then by agreement of counsel the
ca-.e was,' set for the second Monday
of the January term. , . L
Knightdales Depot
Final arrangements have been made
for the construction at once and for
the permanent maintenance of a
freight and passenger depot at Knight
dale, the first railroad station out of
Raleigh on the new Raloigh and Pam
lico Sound Railroad. This proposed
new town is abuot one and a half or
two miles the other side of Neuse
river. Streets and lots have been laid
off on the property, and lots will be
offered at private or auction sale in a
few days.
Death of Miss Myrtle Wilson
Miss Myrtle, daughter, of S. B. Wil
spn of Greenville, died at the home of
her parents Tuesday morning, from the
effects of typhoid fever. She was a
faithful member of the Baptist church.
The funeral took place Wednesday and
was followed ; by interment in: Cherry
Hill cemetery. ' w
ment, and that said record shall be im
mediately docketed in the superior
court and that a transcript thereof
shall be immediately certified to the
supreme court, and that the supreme
court shall be requested to advance the
case for hearing at the earliest prac
ticable moment.'4
"W. B. JONES,
. V ARGO, & SHAFFER,
Attorneys for Petitioners.
W. B. SNOW,
R. H. BATTLE,
Attorneys for Defendants.
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Mr. Boushall and Mr. Drewry Back
From Hartford
Mr. J. D. Boushall, state agent cf
the Aetna Life Insurance Company,
has returned from Hartford, Conn.,
where he' attended the annual con
vention of the Life Underwriters As
sociation. This proved to be the most
largely attended meeting the organiza
tion has held, 220 delegates being pres-
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