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Thomas in the case of the two parties charged, Byars and Hicks-it was as clear and satisfactory an alibi as I have ever known established.

Question. Give us the particulars.

Answer. It was proved, by disinterested parties, clearly that these men were at home. One of them was sick; one of them was quite an invalid-a boy that looked like it would be almost dangerous for him to go from home. I think he was sick on his trial at the court-house. The other two were young men of good constitution, stout young men. I told the judge as soon as the defendants made out their showing, that so far as those two parties were concerned I could not ask a conviction, for I had nothing to go upon. I had the deposition of the coroner's inquest charging these parties. I told him I could not see how I could ask for the conviction of two of those men, Byers and Hicks. But as to Randall, of North Carolina, partly as I knew nothing of him personally, and there was a circumstance of suspicion, according to his proof in proving his alibi, there had been a gathering of two or three men at his house that night, and the evidence was that some of them were under the influence of liquor; I presented that as a matter for the consideration of the judge. The result was the discharge of three of them. He increased the bond, I think, of this North Carolinian, Randall-it was $1,000.

By the CHAIRMAN:

Question. He discharged them on bail?

Answer. Yes, sir, under the writ of habeas corpus. Do you want me to go on with the statement of the case?

Question. Yes, sir; we want the facts.

Answer. When that case was presented at the next term of the circuit court the solicitor had an interview with me with reference to the matter, inasmuch as I had appeared for him in the preliminary examination, and I told him if I were he I would direct my attention especially to Randall, and I thought it was very doubtful, in fact almost improbable, that he could make anything out of the Byers and Hicks cases, but he might make something out of the others, and I directed his attention to this very point to make him explain that. I happened to be present in the court-house during the trial, and they did explain it to the satisfaction of the jury and, I think, of the judge, from his charge. But in the investigation of that case the important witness was Harriet Roundtree, the wife of Thomas, and the daughter. The daughter was a halfgrown girl, quite ignorant and very much embarrassed in the investigation. The mother, however, was very composed. She made a very direct charge on these parties. I think the evidence was about this: That she heard one of the parties in his house that night tell this fellow Randall to come out of a trunk that he was pillaging, I suppose. With reference to the other two, she said they were neighbor boys, and she saw them there and knew positive they were there. Her daughter came up next and testified in reference to this man-I think it was Randall-one of them, anyhow, who was named out by the others to come out of that trunk. She also stated that she thought she knew the other two who were charged. I suppose that there were twenty or thirty witnesses in the case; certainly parties who were not connected with the accused in any way. Hon. William C. Black was one of them. He has been a member of the legislature from this county-an aged man.

By the CHAIRMAN: Question. Who is he?

Answer. He was one of the witnesses in this case. This girl had belonged to himprobably she and her husband both. They established, I think, very satisfactorilyin fact, the evidence was criminative on that trial in reference to the innocence of Byars and Hicks, and, according to the proof, this gathering, the only circumstance of suspicion that I saw upon the preliminary examination, was explained by this man Randall; that he was a man that drank, and that he had a gathering of two or three boys there-not Hicks nor Byars, but some neighbor boys-and that they got on a drunk. A man named Sam Hunter, quite an intelligent freeman, I think an old freeman, too, got upon the stand and swore that he knew Randall from childhood; that he was a harmless, inoffensive man, and, from what he knew of him, that he would not suppose that he would be guilty of an offense of this character. The very same man, corroborated by three or four other colored persons, got up and unequivocally stated that they would not believe Harriet Roundtree upon her oath; that she was a very bad, spiteful, malicious woman. He gave the reasons. This man was a Baptist preacher. Question. Who was?

Answer. Hunter, who discredited her. Hunter's intelligence and general appearance struck me at the time.

Question. He is a negro?

Answer. Yes, sir; he said he could not believe her upon her oath. He was asked the question, and was corroborated by two or three others. They gave reasons; I do not remember them now. The result of the matter was that he was acquitted. It was there stated in that investigation, by a white man, whose name I have forgotten, that

Harriet Roundtree, on the day of the murder, had told him that a man named John C. Laris, who has since left the country, and a man named Hugh Roberts, who is now on the board of county commissioners, had told her to charge these three menu with it. They, however, got up and denied it. In justice to them, I state that. (See Appendix No. 2.)

Question. Were you connected in any way with, or had you any knowledge of, the case of a man named Wright?

Answer. Bill Wright?

Question. I think that is his name.

Answer. Yes, sir. I was not immediately connected with his case. He came to me and employed me as a lawyer in his perjury case that grew out of his charging a man named Sapaugh with having Ku-Kluxed him-one of the best men in this county-a man utterly incapable of anything of, the kind. Mr. John Bolton Smith, an attorney here, the oldest one at the bar, represented Wright in prosecuting Sapaugh, and my former partner, Colonel Wilson, represented Sapaugh.

Question. That is the man whose name is spelled S-a-p-a-u-g-h?

Answer. Yes, sir.

Question. Is there not an alias Sapaugh and Sapoch? it is so in the indictment. (See Appendix No. 3.)

Answer. I do not know about that; his name is Abraham Sapaugh, I understood from my partner who attended to the matter. I had no connection with the case, and did not hear it; my partner told me the circumstances. The point relied upon to identify Sapaugh was his long white beard, and the appearance of his hair. Sapaugh proved, first, he had been in the habit for probably a year or so of wearing a long beard-he is a gray-bearded man when his beard is out; but on account of some ulcer or ring or tetter on his throat, he had had his beard off for some months before that certainly for some time. He furthermore proved that, on the day before the night upon which this whipping was alleged to have been done, he was returning from Rock Hill home with a load of lime; that he met Bill Wright in the road, and was friendly; that Wright asked him what was the news from Rock Hill, and how much he got for his lime; that he continued his journey home, and there found his daughter dangerously ill, so that they staid up the whole night with her. I think his physician, Dr. Black, was there also. Upon that trial the defendant's attorney selected, I think, four black men on the jury, one of whom is a member of the board of county commissioners.

By the CHAIRMAN :

Question. Are you speaking of the trial of Sapaugh or Wright?

Answer. The trial of Sapaugh-no, I am wrong, I was running back into the Roundtree case. In the Sapaugh case it was a preliminary examination before Miles Johnson, a magistrate, and the case was there thrown out, and never came up to the court upon the proof below. With reference to Wright, he had taken out a warrant before H. K. Roberts, then a trial justice, and a very ignorant one.

By Mr. VAN TRUMP:

Question. A black man?
Answer. A white man.

By the CHAIRMAN :

Question. What was his full name?

Answer. Hugh K. Roberts. He had taken out a warrant charging this man with having whipped him.' This was away up in the county. How, I know not; the case was brought down here before Miles Johnson. In his affidavit before Roberts he swore positively and unequivocally that this man Sapaugh had whipped him. He came down here, and on his oral examination, after having been cautioned, I think—the party told me-he swore again. The party told me he cautioned him because he knew the character of the testimony, and was afraid the boy might have been influenced in the matter. I do not know anything about it. The case ended there, as far as the prosecution of Sapaugh was concerned.

By Mr. VAN TRUMP:

Question. Did he swear differently?

Answer. He swore still a second time.

Question. Positive?

Answer. Yes, sir; but the verdict of the jury acquitted Sapaugh.

By the CHAIRMAN:

Question. He swore to the same thing in court that he had sworn before both the magistrates?

Answer. Yes, sir; a preliminary court-the magistrates.

Question. Was it a trial before a jury?

Answer. No, sir; before a magistrate. It never went to the circuit court to my recollection.

Question. The information against Sapaugh was thrown out without going to a jury, before the magistrates?

Answer. No, sir; I am not certain whether there was or was not a jury. My impression is, there was a jury before the magistrates.

Question. The trial of Wright was before a magistrate also?
Answer. Yes, sir; I am speaking of the trial of Wright.

Question. Did either of them get into the superior court?

Answer. Yes, sir, Wright did.

Question. You stated that Wright made an information before a justice, Roberts and it then came before another justice, Johnson, and he made the same information in both cases, swearing positively?

Answer Yes, sir, I understood so.

Question. When it came to court did he swear positively there again?

Answer. No, sir; he was not sworn in court. His counsel told me he was afraid to put him upon the stand for fear that through his ignorance he might blunder and make the matter worse. His counsel told me he intended to appeal to the jury in his

behalf without putting him up.

By Mr. VAN TRUMP:

Question. Which case are you talking about?

Answer. The Wright case. The Sapaugh case ended before the trial justice, and Wright having sworn positively before Roberts, and having came down here and sworn again before Johnson, and Sapaugh, being acquitted, turned around and indicted Wright for perjury.

Question. How could Wright be a witness in his own case?

Answer. We all testify in our own behalf here.

Question. In a criminal case?

Answer. Yes, sir; the young man who defended him told me "if I put him up there, of course it is a case of perjury. He knows nothing about it; he does not understand the character of the charge at all, and if I put him up there his demeanor may prejudice his case."

Question. Your law in regard to a criminal testifying in his own behalf is as in Ohio, that he may or may not do it?

Answer. Yes, sir; and in half the cases we do not do it. I took the broad ground before the jury that that is a matter of course putting him up; I have asked the jury not to believe anything he says, anyhow, unless it is strongly corroborated outside. For the same reason, I understood this young man said he would not put this man up because he knew nothing at all about his intelligence, or anything of the kind, and it would be a dangerous experiment, and he thought nothing could be made against him by his not putting him up. Because the simple question was whether or not he had willfully and falsely sworn in swearing positively to Sapaugh. The strong ground I suggested to him to take was this: If there was criminality, the trial justice ought to have instructed him how to frame his affidavit; in other words, that the trial justice had framed the affidavit, and by the framing of the affidavit he had probably prejudiced the case.

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By Mr. STEVENSON:

Question. Wright could not read or write, could he?

Answer. I should say not. I do not know, though.

By the CHAIRMAN :

Question. Was he convicted?

Answer. Yes, sir; and sloped before the sentence-ran off.

By Mr. VAN TRUMP:

Question. Is that the last of him?

Answer. Yes, sir; I have never heard of or seen him since. He had the reputation of having been driven from North Carolina-because he came to me and I talked to him about his case, and I inquired of him, and about him, and he told me that he had had the reputation of living with two white men in North Carolina and that he had fled from there.

By Mr. VAN TRUMP :

Question. Is there any other case you have any knowledge of or have been connected with that will throw light on the investigation here?

Answer. I have marked on my memorandum the Barrett case-that is the case in which my first acquaintance with Colonel Merrill began.

Question. Give us the history of that?

Answer. Barrett's case was this: Some disguised parties went to Barrett's house,

some five or six miles north of this place, and made a considerable noise and violent demonstration, but, according to his testimony, did him no personal harm. Barrett came down here and told me he saw Colonel Merrill, and his idea was to get the colonel to send him up a guard there. There had been a guard above him there-a State militia guard, stationed on the line for the protection of the immediate locality. He stated to me that Major Merrill had heard his tale and said, "Is there no civil law?” He said, "Yes, I reckon." The colonel said, "You then make affidavit to what you have stated before me and we will see whether this civil law will take hold of it." Barrett did make his affidavit, and made it very cautiously, stating that it was only his general impression, and charging three of his immediate neighbors, either of whom lived within the sound of a voice, almost, to himself-very near. Their names were Caldwell, Smith, and Barber. A preliminary examination was had before Trial Justice Williams, in this place, in a few days. Barrett came to me to prosecute for him. I had a good deal of office business in my office that day, and told him he must excuse me; that I had attended to two or three of these cases without any profit at all, and I thought some of the other members of the bar ought to take their share of it. He insisted, and I told him if he could not get any one else, to try the other members of the bar-I named several others-to come back. He went off. After a while he came back with the sheriff of the county and stated that he had seen Major Merrill and Major Merrill had told him to tell me, inasmuch as he asked me to represent the case for him, that it would be very bad for the case to go unrepresented; that it would show a state of things here that probably did not exist. As soon as he stated it in that view, I dropped my pen and took my hat and walked to the court-house and took charge of the case. I was introduced to Major Merrill in the court-house, and two or three other officers were there.

Question. That was your first acquaintance with Major Merrill ?
Answer. Yes, sir.

By the CHAIRMAN :

Question. What was the date of that?

Answer. I could find out by the papers.

Question. What term of court was that?

Answer. It was a preliminary examination, I think.

By Mr. VAN TRUMP:

Question. Proceed.

Answer. I stated to Major Merrill, in a low tone, after I had told him I had taken this case, that I was very much afraid that it was too indefinite; that it would be almost impossible to make any showing at all.

Question. Here is the date in the newspaper, April 4.

Answer. That is the date.

Question. It was a few days after the major got here?

Answer. Yes, sir; it was while he was at the hotel, before he moved to his house. I stated to Major Merrill that from what the fellow had told me in my office, though I had not paid special attention, I was satisfied he was too vague in his testimony. He said, "I reckon not; he swore very positively to me.' I said, "Major, you will find that on the stand that he is going to flinch."

Question. Is Barrett a negro man?

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Answer. No, sir; a white man. I said you will find him entirely too general. I did put him up and asked him the question if parties were there, &c.; went through the preliminary examination, as to there being a raid at his house; if he knew any of the ties. He said he did know these three men. I asked him, "How did you know them?" He said, "Just from their general appearance." I asked him, "Are they your neighbors." He answered, "Yes, sir." I asked him, "Did you know them by your faces?" He answered, "No, sir, I do not swear that." These were his words. I asked him, "How do you know they are the parties?" He said, "Well, sir, I just know from their general appearance." I could not get him out of that, and the fact that he had tracked horses in the direction of one of these men's houses, which was a by-path or road that led by his house. I could not get along at all. The trial justice, after he had heard the testimony in reference to the defendants, dismissed the case.

By the CHAIRMAN:

Question. You mean the testimony of the defendants ?

Answer. Yes, sir; and their witnesses.

Question. They offered testimony?

Answer. Yes, sir; and their witnesses. We do that in preliminary examinations here--both sides. You will understand, Senator, that these preliminary examinations are to ascertain the probable chance of innocence or guilt, with a view to carrying them on to the upper court.

Question. The matter was discontinued by the trial justice?
Answer. Yes, sir.

By Mr. VAN TRUMP :

Question. Who was the magistrate?

Answer. W. B. Williams.

Question. A white man?

Answer. A white man.

Question. A democrat or republican?

Answer. He is a democrat, I believe. He has been appointed here recently under the reformed system of Governor Scott.

Question. Is that all of that case?

Answer. As I went home that day I met Major Merrill at the hotel, and he expressed himself entirely satisfied with the investigation I had made of the matter.

By the CHAIRMAN :

Question. What was the defense set up?

Answer. They proved an alibi.

By Mr. VAN TRUMP:

Question. Colonel, I will ask you, in case a charge of guilt is made against a person or persons who are alleged to have been in disguise, is there any other possible defense hardly?

Answer. I know of none, sir; as an honest lawyer I know of none; in the examination I knew the prejudice in reference to this general and wholesale use of the alibi, and I did everything in the world that I could, to the utmost of my capacity and ability, to thoroughly sift any pretext that might be used to establish an alibi in every single case, because I was guarded upon that very point, and I never have yet been able to defeat them. So natural and reasonable were the circumstances linked together that I have never yet defeated them.

Question. If there is a violence committed by a party of disguised men who are unknown, and the charge is made against an innocent person, is there hardly any other possible defense than the alibi? .

Answer. There is none that I know of. It may be greatly misused, of course. He must prove his innocence-how can he best prove it? By the fact that he was not there; that he was elsewhere and could not have been a participator in the offense. It may be abused, as you see, but if I were charged with an offense to-night, what other defense could I set up?

Question. You were about to speak of going up street?

Answer. Yes, sir; I went to Major Merrill, and he told me he was satisfied, and moreover that the affidavit that the man had made on the trial and the statement he had made to him did not correspond at all; that the statement made to him was much stronger, and was positive. Now, in reference to that trial, the question was asked whether I would permit a question to be asked Barrett on the stand. He was on the stand. I asked the defendant's counsel to know what the question was. He told me privately what it was: "If Barrett had not stated long befere that that the white people of this country ought to look upon him with favor, inasmuch as he prevented the negroes out there from burning out eight miles square." It was a monstrous tale, and I did not attach any importance to it at all. I asked Barrett if he had any objection. He said he had not; that he had used the language, and that the people ought to look upon him with more favor upon that ground. The next day after that he was then in Major Merrill's camp down here, I think

Question. As a sort of refugee, for protection?

Answer. I take it so. He told me he was there for protection..

Question. Did he stay there after the trial?

Answer. I do not know; he did before the trial, between the complaint and the hearing. The next day, or the second day after the trial, I saw a number of colored persons coming into town; I asked one of them what was the matter. He said, "We came in to see Duff. Barrett about that lie he has told." "What is the matter?" I asked. He said, "We hear that he states that he has prevented the negroes of the country from burning out eight miles square, and we have come in to establish that that is a lie." I use their own expression. One boy came up and said, "I met him three miles from here, leaving town, not in the direction of his own home." I never heard of Barrett from that day to this; where he lives I know not.

Question. Barrett eloped then?

Answer. Yes, sir; and this negro met him three miles west of here, but his residence is north. He suspected him; he says: "After telling that tale he is going to leave, for he can't stand up to it."

Question. Did he say there were any soldiers with him?

Answer. He said he met soldiers between there and here.

Question. What is the fact as to the current information here whether Barrett was escorted by soldiers out of town?

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