Part II.

THE CASE OF JAMES WILLIAM AVERY, JAMES RUFUS BRATTON, AND OTHERS.

COLUMBIA, December 9, 1872.

Mr. Corbin moved to enter a nol. pros. in the case of the United States against James Rufus Bratton and others, against whom a bill of indictment had been found-the grand jury having presented two other bills against the same parties.

Mr. Johnson. What was the original bill?

Mr. Corbin. The original bill was against James Rufus Bratton and others, in which murder was charged, and, in lieu of this, I have presented to the grand jury two bills, and they have brought them in; one charges murder and the other does not. I make the case of murder as agreed upon-that is the case of James William Avery. In that the first count is the same as in the original indictment.

Mr. Johnson. We want copies.

Mr. Corbin. We will furnish you with copies in the Avery case. The grand jury also presented a bill against Robert Hayes Mitchell and others. We are ready to go to trial in this case. It is the same as I presented the other day. The same parties that were indicted for murder; but we have omitted the murder counts.

Mr. Johnson. We want to try the murder case now.

Mr. Corbin. There is no objection to going on with the case in which there is no murder charged.

Mr. Stanbery. It is contrary to the agreement.

Mr. Corbin. Not at all. The counsel has not understood me. There were thirty-one persons charged in the other indictment that was originally presented. We have taken fourteen out of it, and charge them with murder, as they were charged before. We have taken the others and indicted them-leaving the murder count out. We are ready, now, to go to trial upon that indictment.

Mr. Johnson. Which indictment?

Mr. Corbin. The indictment of the same parties, without the murder

counts.

Mr. Stanbery. The agreement between the counsel, in the presence of

the Court, is a matter which must be regarded; and the agreement, yesterday, was that the next case to be called should be the murder case, and we have made preparation for nothing else. To go on with another case would not only be a violation of the agreement, but it would be impossible for us to commence without further preparation.

Mr. Corbin. But, if the counsel desire, I will call up that murder case. I don't care which we try first.

Mr. Johnson. The murder case is the case we want.

Mr. Corbin. I will be accommodating.

Mr. Stanbery. We don't want accommodation; we want the agreement carried out.

Mr. Corbin. We are ready to proceed to trial in the murder case. Are you ready?

Mr. Stanbery. We are ready.

Mr. Johnson. Is that the indictment that we have a copy

Mr. Corbin. It is a new indictment.

Mr. Stanbery. How does it differ from the other?

of?

Mr. Corbin. It is charged in one count that they did beat him because he voted. It is the same thing-only charged in a different way.

Mr. Stanbery. We want a copy of this indictment; for murder is a very grave offense.

Mr. Corbin. The counsel insisted on having that case. Now I insist on going on.

Mr. Stanbery. The gentleman is wrong. The case he agreed to call up he has nolle prosequied.

Mr. Corbin. But this case is against the same parties.

Judge Bond. You can have time to look at the indictment. And now we will go on with the other case.

Mr. Stanbery. Why, if the Court please, the agreement was to go on with the murder case.

Judge Bond. The agreement was that they would furnish you with an indictment, charging murder, in order that you might make your exceptions, and take the case to the Supreme Court. The District Attorney has done that, and you say you are not ready; you shall have such time as you require to look at that indictment. Now, there is no reason why we should not go on with the other indictment.

Mr. Stanbery. The District Attorney did furnish us with a copy of an indictment containing the charge of murder. The gentleman spoke of that as the next case to come on. He has nolle prosequied that case in which we were ready, and presents another containing some of the same counts and allegations. The solemn agreement, upon which this plea of not guilty was rendered, and our whole proceedings were entered into, was that the next case should be the murder case; and, upon that case,

we were to make our point, and not afterwards to try any case with regard to murder.

Judge Bond. He shall not try any case involving the charge of murder.

Mr. Stanbery. But, first, we want the murder case.

Judge Bond. He has brought you a murder case.

Mr. Stanbery. He has; and all we ask is simply a reasonable time to look at it.

Judge Bond. You shall have as much time as you want; but that. need not prevent us from going on with any other case.

Mr. Johnson. I should like the Attorney, may it please your Honors, before deciding finally whether to take up the murder case or not, to tell us, as briefly as he can, how the indictment upon which he proposes to go to trial differs from the indictment which he has disposed of to-day by nolle prosequie,

Mr. Chamberlain. If the Court please, I will state, as briefly as possible, how this indictment is now drawn; wherein it differs from the original indictment, which contained a charge of murder. The Court held the first count of the original bill good, but held the second count bad, and the second count was repeated in the third count with murder added. We have, therefore, omitted that bad count to which the murder count was added, and have added the murder count to the first count, which was held to be good; and those two, therefore-the first count precisely as it was before, and the first count, with murder added-constitute the second count. The Court then held that the sixth count, in the original indictment, which I will now turn to, which charged that a conspiracy, with intent to injure, &c., Amzi Rainey, because of his free exercise of a right and privilege, &c., would have been good if it had been drawn with the particularity of the first count. We have, therefore, drawn a new count, with the particularity added that is contained in the first count, and that constitutes a new count, based upon the decision of the Court in the first indictment; and that count I will read, with the permission of the Court:

"And the jurors aforesaid, upon their oaths aforesaid, do further present, that James William Avery and others, together with divers other evil disposed persons, to the jurors aforesaid as yet unknown, late of York County, State of South Carolina, at York County, in said District, and within the jurisdiction of this Court, on the sixth day of March, 1871, unlawfully did conspire together, with intent to injure, oppress, threaten and intimidate Jim Rainey, alias Jim Williams, a male citizen of the United States, of African descent, above the age of twenty-one years, qualified and entitled by law to vote at any election by the people in said County, District and State, because he, the said Jim Rainey, alias

Jim Williams, did exercise the right and privilege of voting at an election by the people in said County, District and State, held on the third Wednesday of October, Anno Domini 1870, contrary to the Act of Congress, in such case made and provided, and against the peace and dignity of the United States."

That constitutes the whole indictment.

Mr. Johnson. Read the count that alleges murder.

Mr. Chamberlain. The count which contains the charge of murder, charges the parties named James William Avery and others, with a conspiracy to violate the first Section of the Act, and then, "the jurors aforesaid, upon their oaths aforesaid, do further present, that James William Avery and others, late of York County," etc., "did make an assault," etc., "and the said James William Avery and others, a rope around the neck of the said Jim Williams, alias Jim Rainey."

Mr. Johnson. Is that a copy of the other?

Mr. Chamberlain. It is.

Mr. Johnson. Well, you need not read it then.

Mr. Chamberlain. It is the same, only it does not contain so many

names.

Mr. Stanbery. How does it conclude?

Mr. Chamberlain. Against the peace and dignity of the State of South Carolina. It is the same, only we have attached it to a good count, instead of to a count which the Court decided to be bad. There is also another count, in which we charge that they conspired with intent to oppress, threaten and intimidate, in order to prevent his free exercise, etc., to wit: the right to keep and bear arms, contrary to the Act of Congress; and to that, also, is added the same charges. So that the murder charge is repeated twice-it is in two counts.

Mr. Stanbery. I think, if the Court please, that we can make our points; may send the case to the Supreme Court on that indictment.

Judge Bond. It will take you some time to do that.

Mr. Stanbery. A little time; yes, sir. I have stated, if the Court please, they only have to be the points upon which the certificate of division shall be certified, and will read them, that the Court may make any amendment that may be necessary.

Mr. Stanbery read a number of points, on which the Court were desired to certify a difference of opinion.

Mr. Corbin. I don't understand that there is any division of opinion, except upon whether the murder can be tried in connection with the two

counts.

Judge Bryan. That is the understanding.

Mr. Stanbery. The Court will send up such points as they consider proper, to have the instructions of the Supreme Court upon.

Judge Bond. We seek no advisement upon these points; only on the murder counts.

Judge Bryan. We desire advisement in regard only to that. It is a question of very great consequence to the citizen and Government.

Mr. Stanbery. As to the empannelling of jurors-that is a vital point. Mr. Chamberlain. The Court expressly decided that you were entitled to ten peremptory challenges.

Mr. Stanbery. They have not agreed upon that opinion.

Judge Bryan. My brother would rather you would exercise the challenge than to have you go up on that question. My brother yields on that point.

Mr. Johnson. May it please your Honors, I know that the Court are not divided upon several of the questions which they are requested, by that statement, to divide upon, but that the division was only as announced upon the points which arose upon the third count, which connected the offense of burglary with the principal offense of violating the other provisions of that Act. I rise merely for the purpose of saying that, although the Court were not divided at that time, upon any question, other than the one upon which they say now they were divided, I hope the Court will keep the matter open, so as not to prevent us from asking the Court to give us an opportunity to show that they ought to divide upon other points. If we can satisfy your Honors that there should be a division upon other points, the Court, I am satisfied, would willingly divide upon such points; but, as the case now stands, we are not advised that the Court will divide upon any other question than the question which arose upon the murder count. I only wish the Court to understand, now, that when we come into Court we may think it our duty to urge the Court to the propriety of dividing upon other questions. Whether we succeed or not, is a matter the Court will dispose of hereafter.

Judge Bond. It is.

Mr. Stanbery. I suppose, if the Court please, that by Monday we can be ready to present the point upon which you may certify the division, though I have already stated to your Honors the point, as I supposed it was; but whether it is satisfactorily stated, I am not well aware.

Judge Bond. I do not think you stated the point clearly.

Mr. Stanbery. Will your Honors allow us until Monday to state the point?

Judge Bond. Yes, sir.

Mr. Stanbery. If the Court please, we have a matter to take up now, and we shall ask until Monday to get our witnesses, &c., and to prepare for this new indictment. We can occupy the Court with a very important matter, with regard to the case disposed of yesterday.