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COOPER CASE GOES TO JURY.
Delay Makes Defense Uneasy-Laugh
ter and Singing in Jury Room
Nashville, Tenn., March 17.-With
no indications that the twelve men are
anywhere near an agreement, the op
inion begins to prevail that a mistrial
will be the termination of the famous
case against Col. D. B. and Robin J.
Cooper and John Sharp for the slay
ing of former United States Senator
E. W. Caimack. Judge Hart at 4
p. m. adjourned.court and started for
his country home. He said he did not
think a country jury with no way to
get home at night would be foolish
enough to bring in a verdict tonight.
"They'd stay over and get the night's
lodging and breakfast at the State's
expense," he added.
Judge Hart began his charge to the
jury at 9.30 a. m. and finished at
11.15, at which time the twelve men
retired to deliberate. The typewrit
ten charge of 62 pages, about 400
words to the page, was handed to Ju
ror S. J. Hyde, and according to the
custom in this county this makes him
the foreman. -
Judge Hart has declared his inten
tion of holding the jury together for
a week or two if necessary, in order to
get a verdict.
Judge Anderson, of the defence, ex
pected a verdict in thirty minutes or a
mistrial. He would not discuss the
The court's definition of an overt
at was general in character, and he
instructed the jurors that they must
decide whether or ,not the Coopers
co.imitted an overt act when they
crossed the street to meet .Carmack.
Cooper's Daughters Frowned.
As the court declared that no epi
thet, editorial or speech was sufficient
to justify even an assault, Mrs. Burch
and Mrs. Wilson, Col. Cooper's daugh
ters, frowned and the -former's eyes
filled with tears. The words 'death
by hanging" made the young women
winee. Mrs. Carmack, shrouded in
black, was in court, her son on the
arm of her chair. A half hundred wo
men friends stood or sat behind her
and adjoining counsel for the State
Two private detectives stood near At
torney General McCarn's chair and
kept a watchful eye on the crowd, and
a score of special deputies were dis
tributed throughout the court room.
When the jury retired two deputies
were placed on guard at the jury room
door and two more at the foot of the
stairs leading to the. tihrd floor, up
on which floor the room is located.
No one Wus permitted even to loiter
around the foot of those stairs.
The jurors were given luncheon at
12.30 and supper at 6 p. in. .
After supper the jurors returned, to
their room and bursts of laughter and
snatches of song indicated that the
twielve men were not discussing defin
nitions of murder or theories of self
defenee. Just before 9 p. m. they
summoned the deputies and announc
ed that they would 'turn in'' for the
Judge Hart's Charge.
Judge Hart 's charge in part fol
''The purpose to kill is no less pre
aneditated, in the legal sense of the
term, if it was deliberately formed but
a minu2te preceding the act by which
death is produced than if it had been
formed an hour or other period of:
time- before. The question of vitai
importanee is, was the mind of the as
eailant at the moment of the killing
so far free from excitement or passion
as to be capable of premeditation.
and was the death of the party slain
the object sought to be accomplished
--the end detrmined on?
'Maliec necessary to constitute
murdele in the second degree is not
confined to an intention to take the
life of the person actually killed (as
in the case of murder in the first de
gree)~ but includes an intention to do
any unlaiwful act which may probab
ly result in depriving a person of
Judge Hart defined heat of passion
as excitement of such a nature as
would obscure the reason of any ordi
nary man and ren;der him liable to do
an aet which might cause death.
''revious threats by the deceased
against the defendant, or acts of hos
Itility toward him, or previous abuse
of him, how violent so ever it may be,
is not such provocation as the law rec
ognizes as sufficient to reduce an un
lawful killing to manslaughter, if the
killing was done at such time after
these things had been done as a rea
sonable person would have regained
Of reasonable doubt Judge Hart
''Absolute certainty is not demand
ed by the law to convict of any crimi
nal charge, but moral certainty is re
''The law of self-defence is thus
defined by our supreme court. To
excnse a homicide. the danger of
death- or great bodily in5ary must
either be real or honestly believed to
be so, at the time and upon sufficient
--rmuds Tt must ba apparent and
imminent. Previous threats and even
nt ol hostilitv. how violent soever
they may be, will not of themselves
excuse the slaying.
"To constitute this defence, the be
lief or apprehension of danger must
be founded on sufficient circumstances
to authorize the opinion that the
deadly purpose then existed, and the
fear that it will at that time be ex
cused. The animosity of the deceased
against the defendants as indicated
by -words or actions then and before is
a proper matter for the consideration
of the jury on the question of reason
able apprehension, but if the killing is
not done under the fear it is calculat
ed to inspire or the fear is feigned
and pretended. the defence will not
be available.* * *
"It is hardly necessary to say that
the real or apparent necessity brought
about by the design, fault or contri
vance of the defendants is no excuse,
but if the fear of a less injury than
death or great bodily harm be indicat
ed by the proof, then the grade of the
offenee would be lessened, though it
would be ineffectual as self-defence.
Judge Hart said that ordinarily a
witness who testifies to an affirmative
is to be preferred to one who testifies
to a negative.
Definition of Conspiracy.
Defining conspiracy the court said:
"It is not necessary, in order that
they become co-conspirators, that they
should talk the matter over and agree
as to what portion each one shouid
perform. It is sufficient if there is a
tacit understanding between th-em. -
"The State insists that John D.
Sharp was nearby, if necessary, to
participate in any way that might be
necessary in the killing. or was there
for the purpose of making himself a
witness. If you believe this to 'be
true, it would be your duty to convict
all of the defendants of murder in the
"Or, if you believe that D. B. Coop
er had threatened the life of Carmack,
that he said he was going to kill him,
or one or the other o-f them must die,
or that the town would not be big
enough to hold them both, and that he
had written a note for the purpose of
sending te Senator Carmack stating
in subst-nce what had already been
Sent in a message by Mr. Craig to the
deceased, and that.he did not send the
note at the solicitation of the friends,
but on. seeing Senator Carmiack his
intention to take. himself, Carmac-k's
life was revived, if he ever had it, and
that h"' formed at that time a fixed
pm-pose to carry that intent into ex
eution, and crossed the street for that
purpose, either to open a fight direct
ly on their getting together or havingI
a conversation -with him intending
thereby to bring on a fight, and if
getting together or havinug a conversa
tion with him intended thereby to
bring on a fight, and if the sa.id E. W.
Carmack resisted, to take his life, and
that Robin Cooper was present intend
ing to assist .his -father in any and all
extremes and under any and all cir
eumtances, it would be for you to de
termine whether or not the approach
ing of Col. Cooper and the langu-age
used by him as he approached, if any
was used, was suech a-n overt act as
would reasonably cause the deceased
to believe that he, the defendant, D.
B. Cooper, was about to earry his al
leged threat into execution and that
he was approaehed by both of them
in this manner and form and had rea
son to 'believe that his life was about
to be taken or done some great bodily
harm; in that even he would have the
right to defend himself from the
itiratened attack;;1and if the defen
dants, D. B. Cooper and Robin Coop
er, thus approached him and he fired
the first shot or shots under these
conditions and circumstances and they
returned fire, in that event, gentle
men, the defendants could not avail
themselves of the r-igh.t of self-defence
unless there was something to show
the deceased, either by words or ac
tions, that they had abandoned their
urpose, if they ever had any, and did
not mean to carry the alleged threats
into execution; buit whether there was
or. was there not an overt act on the
art of the defendants, D. B. Cooper
and Robin Cooper, is a matter for you
to determine in the light of all proof,
which the court ha.s permitted the
witnesses to state in your hearing for
Was Their Intent Peaceful.
'"In other worrds if you believe from
te facts that D. B. Cooper and Rob
in Cooper approached Senator Car
mack on a mission of p)eace, if they
were attacked by 'the dec-eased, they
would have a right to use such means
as wvere in their power for their own
self-defence. But if they intended to
take the life of the deceased if he
made any resistance-in that even the
lea of self-defence would not bec
available and you would be warrant
ed in finding them guilty of murder
in the first degree.
''As to the defendant Sharp, the
State does not insist that the proof is
sufficient to warrant a -conviction of
him under the second count in the in
ditment, that is. an accessory before
"The court further charges you
that you may, as the proof may war
rant under the rules as heretof(p're laid
down for guidance, find either one or
more of the defendants guilty. either
one or more of them not guilty, find
some of them guilty of one grade of
offence, and others guilty of another
grade of offence or you may acquit all
of the defendants.
"'The court fu.rther charges you
that it is insisted on by counsel that
extra. judicial conversations are the
weakest of all contradictory process
es, that is, conversations had out of
court by witnesses with persons not
under oath and spoken in a general
way; but you will take these, if any
appear in the proof and consider them
along with the othle-r evidence and
give them such weight as you may
think they deserve.
The punishment for first degree
murder is death. A recommendation
to merey accompanying such a verdict
would give the court t:he option of re
ducing the sentenee to life imprison
ment. For second degree, murder, ten
to twenty years; voluntary man
slaughter, two to ten years; involun
tary manslaughter 1 to 5 years.
CAPERS NO LONGER REFEREE.
President's Course in 'Durant Ap
pointment Foreshadows the End of
Referee System-Capers Says He
Always Opposed Crm and Recom
mended, as , .. Latter's Successor,
Capt. J. 0. Ladd, of Rummerville.
Washington, March 16.-When
President Taft today sent the name
of E. W. Durant. Jr., to the senate
for confirmation, as collector of the
port of Charleston, he set in motion
the new plan for patronage dispensa
tion in the South that he has long
had in mind.
Mr. Durant's name was second on
the list of more than a hundred oth
ers. It is plain from this that the
president wanted not only to make
him .collector in Crum's place, but to
do so at once, in order that it might
become known what policy is to be
followed in such matters in the future.
There is no use in longer concealing
the fact that the political days of
Commissioner John G. Caper, of the
internal revenue bureau, who for some
years has dictated the filling of gov
ernment officers in South Carolina,
are at an end, and, while it may not
be tr.ue that any one else has been
named yet to succeed him as referee,
the truth may as well be known, andV
that is, that when the president de
sired to ma,ke Mr. Durant 's appoint
ment he did not consult Mr. Capers,
but sent for Postmaster General
Hitcek, who, with Postmaster Har
ris, of Charleston, recommended Mr.
Durant 's appointment. Mr. Capers
was not taken into consideration in
any way, so far as can be learned.
It is safe, therefore, to figure on
the president 's future policy so far as
making these appointments is con
erned, and that policy will be to get
the best white men from the Repub
lican party, if they are to be had;
failing in this, then turn to others.
But he does not propose to follow
blindly the old ruts, depending upon
the ancient and obnoxious referee sys
tem. This means that not only Mr.
Capers, but others who formerly die
tated patroniage distribution, will have
no status with the administration as
The naming of Mr. Durant is an im
portant step for more reasons than
one and augurs well for both Presi
dent Taft and his friends in the
South, who are backing him up by
bringing forward their best men in
filling vacancies under the adminis
Mr. Durant will probably be con
firmed some time this week.
Capers Issues Statement.
When Mr. Capers was seen tonight
and asked for a statement about this
matter he said: "I have never recom
mended Crum for appointment, and
when asked sabout the qualifications
of Mr. Durant, I recommended him
unqualiliedly. Mr. Durant married'
the widow of my class-mate, and I
have always .enteretained the warmest
feelings for him. When I lived in
Charleston, he lived just across the
street from where I did, and I know
him to be a man of the highest charac
ter and a man of splendid ability. I
did not recommend him when I was
first asked about the appointment, but
recommended the appointment of
Capt. J. 0. Ladd. postmaster a.t Sum
merville, an old Union soldier. Post
master Harris asked me about Mr.
Durant and I spoke in the highest
terms of him, but said I had never
thought of him in that conneetion. I
did not continue to press Capt.
Ladd 's appointment because he had a
good position in the postmastership,
and Mr. Durant was wholly accepta
'ble to me. I was also asked whom I
would favor if a Democrat was to be
named and I replied "Billy Storei."
Opposed Crum's Appointment.
As for Crum's original appoint
ment, when the appoIntment was un
der .consideration I came to Washing.
ton in company w'ith T. L. G-rant, and
m-ged the appointment of R. R. Toi
bert. for .the office. I stated to Presi
dent Roosevelt that I was op)osed to
0r1-n's appolitimlnlt. if for no other
reason, especially because a 'sub-com
mittee of the State committee, upon
which -there were two white men -and
five negroes, had -expressed itself as
opposed to Crmn's. appointment and
in favor of Tolbert's. At no time
have I recommended Crum's appoint
Capt. Capers was asked also as to
his remaining in his present offie of
internal revenue under the new ad
ministration. "I know nothing about
that," he replied, "That is, so far as
Mr. Taft's wishes in the matter. I
have not seen him, nor tried to see
him on the subject, but have tried to
maintain a. dignified bearing in the
matter. If it is the president's wish
that I remain as commissioner for a
reasonable length of time, I shall be
glad to remain. If, on the other hand,
he desires to appoint some one else
that will be satisfactory to me. I have
not made any effort whatever to in
fluence him and I shall not either di
rectly or indirectly.
THE NEWS OF POMARIA.
Bad Roa&-New Phone Line With
Pomaria, March 15.-The roads in
this section are almost impassable in
some places but there was a good siz
ed congregation out at Bethlehem last
Sunday and Rev. Long preached an
excellent sermon as usual.
The Zion school near hear which
has been successfully taught by Miss
Mamie Alexander will next Fri
day, the 19th. We regret very much
to see her leave as she has made many
friends during her. stay here.
There is another new phone line be
ing added to the list which connects
Messrs. M. H. and J. E. Kinard and
B. B. Richardson. There is some
talk of a new line in the Bundrick
community. Mr. Jacob Koon has
kindly consented to be night central
and allow some talk at night.
Our friend "Busch", the St. ?aul
scribe came out last week and called
our attention to a night central which
seemed to have its effect. Seems as
he did not appreciate us in our favors
when we let -him do all the talking to
the lady friends. What's the- matter
friend, come or.t and let us hear from
Mr. -and Mrsj W. P. Jones ,opf this
place, were called to their hoine Fri
day on account of the illness of their
father at Simpsonville. .Mr. E. M.
Sheeley has charge of the Oil Mill
during Mr. Jones absence.
Mesdames Jas. P. Setzler, Z. T. Pin
ner, J. J. Hentz, J. A. Setzler, J. C.
Aull, and -R. H. Hipp went. to Pros
perity Thursday to do some spring
Prof. E. Q. Ssetazler, of Newberry
college, came down for a short while
last week on business.
Mr. Willie Hatton, student at New
berry college, came .down and spent
Saturday and Sunday at- home re
Miss Ida Mae Sheeley went to' Co
lumbia on Friday, where she will
spend some time.
Mr. and Mrs. George W. Setze-r
spent Saturday night and Sunday in
the parental home in the Half acre
Mr. Thomas S. Blair, of Silver
Street, spent the week with Rev. Jno.
P. Long' s family returning' home
There is a lot of fertilizer being
hauled away from here; seems as if
there will be more used this year
than there was last year.
Pomaria will have a base ball team
this year again, they are about ready
to organize and begin practicing.
There is some talk of a tennis ball
team being organized here among the
Rev. Jno. J. Long will preach at the
Bethel school house next Sunday at.
tihree o'clock-p. mn., and there will be
Sunday school immediately after. Let
everybody come out that can.
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JEWS, Newberry, S. C.
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ELECTION ON THE ISSUE OF
In accordance with an act of the
legislature approved February 27,
1909, notice is hereby given that a.n
eletion will be held in the old court
house in the towi of Newberry, S. C.,
from 8 a. m. to 4 p. m. March 24th,
1909, on the question of issuing bonds
for the purpose of erecting additonal
school building or buildings in the
town of Newberry, S. C., to the
amount of not exceeding forty thous
and dollars at irnteres.t not to exceed 5
per cent per annum, the bonds to run
A levy of one mill has been provid
Ied by the legislature - ''h which to
.pa interest on said L.. and to pro
vide a sinking fund for same.
S. S. Cunningham, J. M. ,Bowers,
Alex. Singleton are hereby appointed
managers for said election.
By order of the board of trustees,
Thursday March 4, 1.909.
F. N. Martin,
J. M. Davis, Chama.