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JUGE UMZMENGER'S CHARGE.
Charge of Judge Memminger in the
Case of The State vs. J. S.
The followhing :he chargez of
Judge Memniinger in the Parnum
"Now. Mr. Foreman and gentlemen
*f the jury, upon the law of this case,
;s to which alone it is my duty to
charge you pursuant to that provis
ion of our Con-;itution which directs
that Judges shall not charge juries
iM respect 'to matters of fact but
shall declare the law. I shall charge
"It appears to me to be very sim
ple now that it has all been threshed
ever and argued by the learned coun
sel on behalf of the State and de
fendant and I myself in the mean
while during the heavy stress and
strain of this protracted trial, not
withstanding, have had some oppor
tunity of eliminating the superfluities
and getting down to direct your at
tention to that which is entirely ma
"Now, I ask your attention, gen
tlemen, strictly to the matters
which I shall lay before you. I have
brought it down to the shortest pos
sible form and tried to put it in such
shape as you can thoroughly under
stand it, as I know you desire to do.
You have first to take into consider
ation whether or not the State has
proved the case beyond a reasonable
doubt, of which you are the judges,
the legal principle of a reasonable
doubt: and that is unless the guilt of
the accused is proved to you beyond
a reasonable doubt you must acquit
,him. If you have a reasonable doubt
upon any material point in the case
Tou must solve it in favor of the
defendant and acquit. By reasonable
,doubt iE meant a real doubt, a sub
stantial doubt arising out of the tes
timony, a doubt for which you can
give a reason.
"Under the first count of the in
dietment the State charges that the
defendant has violated a Section of
our Criminal Code, to wit: Section
261, in certain particulars set forth
in detail in that count, and all of
which you will have before you in
your jury room, and they have been
repeatedly read in your hearing and
therefore it is not necessary for me
to pause here to reiterate, but I am
going to read you the section of the
Code referred to so that you may be
fully in possession of the terms of it.
Now, give your attention to that,
Section 261. (Reads section).
As to Reasonable Doubt.
"Now, you see, gentlemen, by this
section it is made a crime, among
other things, to corruptly offer and
promise to make and give a gift and
gratuity to any executive offBeer of
the State after he has been elected
and qualified for such office with in
tent to influence' his vote, opinion,
deeision and judgment on any matter,
question or proceeding which may be
pending or which may by law be
brought or come before him in his
official capacity. Now, it is upon
proof of the specific material eharges
in the indictment that the state must
stand or fall. You take each of these
material elements of the section ,as
chaiged specifically in the indictment,
and say whether each of them has
been proved beyond a reasonable
doubt. If not, t-he &rarge fails. If so,
it is legally est.abLished.
"As, for instance, it is alleged that
tbe alleged offer and promise was
made by Farnum to Wylie after he
had been duly qualified as a member
of the board. I have already decided
in this case that if you find him t(
have been so duly qualified that as
a mattter of law he was an execuitive
officer of the state, coming within
the terms of the section, but you are
dke judges of the fact as to whethei
or not he has been proven to have
been duly qualified, and, if so, wheth
er the alleged offer and promise te
pay him, if proved, was made to him
bs Farnumn thereafter corruptly it
*e sum of $1,125, wit hintent to in.
fuence his act, vote, opinion, decision
and judgment in favor of the ac
eeotance of certain bids and so forth
Sas set out as material allegations oi
*e indic sent.
'No s.erious questions of law
getlemen. uponi which vou would
seed enlightenment would arise un
der : his count of the indictment. Tot
hve the charges in the indictment
you have the wording of the sectioi
Po the statute, you see that the offe:
and promise must be corrupt an<
with intent to influence, and thos<
igerds have so plain a meaning tha
a?l men can understanid them. Wheth
er t be offer and promise was eve:
,nsummated and whether the otleia
W2' infuece and whie! her the .stat<
lost any:hingt r no are not esen
sal elemeti] e toi be proved except a:
19 throw light upon the question 01
$1e corruptness of the offer and prom
ise and intent to influence. The see
lon is directed at the wrong of at
tempting to corruptly influence offi
2.1a a meio with intent to influene
unduly the action of the officer by
The Law on Rebates.
-I charge. yo)u. however. while
Upon 1his count .and it likewisc ap
plies to the other counts and covers
all of the proposit ions upon tilis point
submitted on behialf of the defend
ant, and it hears upon the question
of corrupt offer or promise and evil
intent necessary to constitute a viola
tion of the law here in question. that
by Section :382 of the Criminal Code.
of this state, the state recognizes that
it is no crime for the seller of goods
to pay what are conitnolj known as
rebates to persons holding offices or
positions of trust or profit.
"'It makes it a crime for any state
official to accept rebates for his in
dividual use and not for the benefit
and on behalf of the state; which
means that while it is a crime for
the state oflicer to take rebates and
not turn them over to the state, it is
not a crime for the seller of goods
in good faith to pay to the state offi
cer such rebates, as, for instance, if
ta -salesman offered a state officer
charged with the duty of buying
goods for the state his goods at the
same price as the price of all others
who bid for the sale and at prices of
like goods elsewhere and at the same
time in order to secure the order of
fered to share his commission on the
sale with the state officer as a re
bate for the state if he would buy his
Igoods, not corruptly so offering and
intending the rebate for t.he personal
use of the state officer, but in good
faith only to push his goods and
earn his commission, he not being re
sponsible for whether or -not the
state officer complied with the stat
ute referred to requiring him to pay
such rebates to the state.
"Now, I read you the section. gen
tiemen, upon that point, Section 382.
(Reads section.) This section shall
not apply to officers in accepting re
bates for their own personal use but
for the benefit and on behalf of the
state. With this statement of the
law, and as to the modification of the
9th and 10th requests of the defend
ant, I shall proceed. They will not
be otherwise directly eharged or re
I fused unless I am requested to do so
specifically and to qualify them each
Bribery at Common Law.
".We pass then to the 2nd and 3rd
counts of the indictment, which have
in different forms eharged the same
offense,to wit: bribery at common law,
the general definition of which of
" The corruptly offering, soliciting
or reeciving of any undue regard as
a consideration for the discharge of
any public duty.'' And by undue
reward is meant any pecuniary ad
vantage, direct or indirect, ,beyond
that naturally attaebed to or growing
out of .the discharge of the duty, or
as otherwise defined: ''Bribery is the
voluntary giving or receiving of any
thing of value in corrupt payment for
an official act done or to be done.''
As it is a crime to take a bribe it is
clealy also a crime to give one for
the offenses are similar. The theory
of our government is that all public
offices are stations of trust and that
those clothed wit;h them are to be
actuated in the discharge of their dui
ties solely by the consideration of
right and justice to the public good
and any serious departure from the
line of reetitude in this behalf and
any corrupt attemp.t tend&ing to pro
duce such departure is a publie
''Now, as to tahose two counts, the
2nd and 3rd, they do not charge sep
arate offenses but the same offense
with a different degree of particular
ity. That is, the State charges the de
fendant with a grea<ter degree of par
.1ticularity in the 3rd than in the 2nd,
t.he object being that failing to prove
'the more particular allegations set
out in the 3rd it may yet prove the
particular allegations set out in the
p2nd as to constitute the eharge of
bribery at common law.
"So while at t'his point it may be
well to state to you here and be do-ne
with that. that while you cannot find
a verdict upon the 2nd and 3rd
counts separately, as you can upon
the first count as distinct from the
2nd a-nd 3rd, the rule for you to fol
ow would .be, unless you find that
none of thle counts are made out and
so find not guilty or that all of the
counts are made out a-nd so find guil
ty generally or find that (01y the first
count is made out, you would write
guilty on the first count. And if you
Ifound a general verdict of guilty and
vet meant to only find on the first
count I. would have to take it that
you meant to find guilty on all and
" And as to a convict ion upon the
2nd and 3rd rounts, commron law
bribery. the pulnishmrent not being
s)ec iiet come under t he statuate which
leaves the punl1ishmenut to the discr-f
-tion oIf the .Judge. not to exceed ten
-years, with or~ wit,biout tine, while you
-see the p)unishment fo?lowing a con
-vietion under the first count only is
ver muc less To make ii plain,
then, gen:lemen. with this explanation
vour verdict should he either guilty,
which means guilty on the tirst and
either he second or thid coun;ts
wilch leaves the punishmem to me.
lot to exceed *t(r years, with I-r with
ouit finle. or gruiltv onl t irs: count.
which mleans inprisolnlent no ex
eeeding live years or fine not exceed
ing three thousand dollars and1 im
prisonment not exceeding one year
or not guilty. I hope I have made
that clear to you, gentlemen. It is
difficult and I have done the best I
could to make it plain.
Conhig now to the issues pre
senting ill hose two counts, the 2nd
and 3rd, in addition to the definition
Yeneralliv aind te general principles
1 have already given you I have but
a few considerations to advert to and
I have done. First. you will bear in
mind in considering these counts as
to whether they have been proved be
vonld a reasonable doubt or not, you
take the general definitioua of bribery
I have given you and theii take the
s1ecitie allegations of hese counts in
the indictment and see if these epeci
fie allegations are made out, because,
I have told you, w1hile the definition
is general the State must stand or
fall by the proving or failure to
prove these specific material allega
tions under the general definition.
State's Burden or Proof.
"As, for instance, the 2nd count
alleges that the defendant corruptly,
and so forth, gave a certain sum of
money to Wylie, a member of the
Board, and so forth, as a bribe and in
corrupt payment. for his act, and so
forth, at. Columbia, in Richland coun
ty. Now, if you find that said sum
of money was not so given, as alleged
in Columbia. that would amount to a
failure: tdat would be lack of juris
diction of this Court. And so on as
to the other material allegations
therein. Upon this point defendant
claimed that the actual money must
be shown to have been paid in Rich
land county. But it seems to me that
the weight of authority holds, and I
charge you, t1hat if the proof shows
th'at the payment of a check, draft or
other device used to cover the pay
ment of the actual cash, and which
was actually cashed elsewhere, that
would be sufficient to maintain the
allegation as to payment in Richland
county in this part of tihe indictment.
"The 3rd count, as I have stated
to you, more fully sets out the al
leged device by which it is charged
the alleged official was corrupted.
You have all these alle ations before
you, gentlemen. If either point is
made out upon every 'imaterial point
therein set out, then the charge of
common law bribery charged in tihose
two counts is made out. Otherwise
not. If neither of these two counts
is made out, but the first count is
made out, the defendan't is only guil
ty of the statutory crime eh'arged
t.herein; and' if neither of the three
is made out under the rules I have
given you, he is not guilty.
A Present No Bribery.
One of the essential elements of dif
erence between t'he first and the eth
er vw~o counts is that in the first an
offer is made and promise alone is
charged, while in the others actual
payment. A mere present to an al
leged official given without a prio'
corrupt promise, understanding or
agreement will not suffice 'to consti
tute common law bribery. Where
there is such a payment it is for the
jury to say whether or not the pay
ment after the act and not before is
a subterfuge to cover a prior under
standing or agreement and whet'her
or not from all of the evidence there
was beyond a reasonable doubt such
a prior corrupt promise, understand
ing or agreement and :hat the pay
ment was corrupt and done with the
intent to influence and as an undue
reward and corrupt award for the
dicharge of a public duty. In other
words, the payment must be a cor
'"1 come now, gentlemen, to the
last and only other poiht to which I
(esire to draw your atten:tion and
I do this in compliance withi request
of counsel no: that. it is strictly a
matter of law because it has been
held and is the law that a jury may
conit upon the uneorrobo)ratedl evi
dence of an accomplice, but it is al
so held to be the prpe praictice for
the judge to cilarge the jury when
requested to do,so-and a reqjuest to
which I desire never to fail to ae~
eed-t hat the jury arie advised tha.t
it is not safe to conviet a deCfendanlt
upon the testimonyv of an ac.comp)lic
unless it is corrob)orated in some ma
terial particulars by other inde
penent facts or circumstances.
\You have the power to convict
upon the testimony of an accomlplicC
wi: hiut corroboration: but I feel
thit Id do right to say nat it is evenl
laid down in the law books and made
statut ory hlaw in somen states :hat it
Iis niot safe to co nviei upo n :he te.to
mony (bit an a.ccomiihe witou OTcoi.
1roboration. By an accomplice is
I me- n who is involved either di
rectlv or indirectly in the commis
sion of the vrime. T, render him
such hie must in somen manner aid or
ass in IthI(le (iminal act and by that
(*WI1n(I(II beceve e(Iuall involved
in the .iII by reason of the crima
-Now. lien. geinlemen. I feel that
I have discharged my -duty here
a'111Mng YoU as well as within me lies
as youir presiding judge: I know that
I have done so impartially. This
ease has ,een thorougdly and fairly
presented to you and you have given
all of it. earnest attention.
;Not far beyond the threshold of
a judicial career which I hope to
make my life work and thereby pass
down to my posterity even unto the
third and fourth generation as a pre
siding judge in South Carolina and
wit a faith in the efficacy of trial
by jury as the most perfect system
of administering justice ever devised
by the human mind, and which has
stood the most crucial of all tests, the
'test of time and experience, and un
der which the English speaking peo
ples of the world have arisen to the
utmost heights of prosperity and
power, upon you as a jury of your
county of Riehland charged with the
responsibility of deciding the issues
of fact, including as well the privi
lege of acquitting those not proven
guilty as the sad duty of convicting
those who are so proven under tibe
rules of law, I east this case. It is
all for you; so take the indictment
and decide the case."'
SOFT COAL, RED
ASH EGG H ARD
c; 1AL, ETNA
Se\ v a rders
Via Southern Railway.
Account of Atlanta Horse Show,
Atlanta, Ga., October 19-22, 1909, the
Southern Railway announces very
low round trip rates. Tickets on sale
October 18, 19, and 20 only good to
leave Atlanta returning up to and in
cluding midnight October 25th, 1909,
but not later.
Very low round trip rates will also
be in effect account of National Ex
hibition of Automobiles and . Auto
mobile Races, Atlanta, Ga., Novem
ber 6-13, 1909. Tickets on sale No
vember 7. to 12 inclusive and for
trains scheduled to arrive Atlanta
before noon November 13, good to
leave Atlanta returning up to but
not later than midnight November 16,
1909. For fuitber information call
on ticket agents Southern Railway, or
W. E. McGee,
T. P. A., Augusta, Ga.
J. L. Meek,
A. G. P. A., Atlanta, Ga.
Schedules Effective June 20th, 1909.
Northboundl Departures f(om New
berry, S. C.
8:57 a. mn., No. 15, daily, for Ander
son, Greenville and intermnediatt
points connecting at Greenville fox
Atlanta and points North. Arrive at
Anderson 12 :24 noon, Greenville 1:15
2:48 p. mn., No. 11, daily, to Ander
son, Greenville and intei,mediate
points, connecting at Greenville for
Atlanta and points north. Arrive An
derson 6:14 p. in.. Greenville 6:55 p m.
.1:40 p. mn., No. 18, daily, for Co
lumbia, Charleston, Augusta and in
termediate points. Arrive Colombia,
3:25 p. mn. Charleston 8:45 p. mn. Au
gusta. S :35 p. mn.
8:47 p. mn.. No. 16 daily, for Co
lumbia, Charleston and intermediate
points. Pullman sleeper from Colum
bia, arrive Columbia 10:35 p. mn.
Charleston 8:15 a. mn.
Summer Excursion tickets now on
For further information, apply to
ticket agents, or,
C. H. Ackert.
V.\ P. & G. M., Washington. D. C.
W. H. Tayloe.
G. P. A., Washington. D. C.
J. L. Meek.
A. G. P. A.. Atlan ta'; Ga.
1 W. E. McGee,
L, . Angusta. Ga.
Tickets on sale October 31st
sive, with final limit to return le
cludi g, but not later than midn
Two passenger trains daily to a:
trains leave Columbia 11.15 a.
time to visit'the Fair.
Get Your Tickel
Which Include Admissio
LEAVE A M.
Laurens... ........ 7 10
Kinards ........... 8.io
Garys. ...... 17
Jalapa ............. 8 24
Newberry ....... 8.47
Prosperity.. . .... .. 9.07
Little Mountain..... 9.33
Chapin .......... 9.45
Hilton... . ...... 9-54
White Rock ........ 9-58
Ballentine.... ... .. 10.06
Arrive Columbia. . 10.50
Returning, trains leave Columbia i
For information, call on any ager
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Wilmington, N. C.
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:The Pirst Cougl
Rven though not severe, has a
*tive arembraaes of the throat
Coughs then coe easy all wil
Sdlightest cold. Cure the first<
1, et up an i&mation ini the'del
langsl. The best remedy is
gYRUP. It at once gets righi
moves thecause. It isfrefr<
* ?chldasf.o an dult. 2 e
UA, S. C.
IRYDLAURENS R, R,
to November 6th, 1909 inclu
aving Columbia up to and in
ight of November 8th, 1909.
nd from Columbia. Returning,
m. and 5.3( p. m,, allowing
:s via C.N.&L
n to the Fair Grounds.
P. M. to Fair.
2.32 .. ............... 2.90
2.44 .. ............... 2.70
2.53 ... ............. 2.50
2.59 .. ........ 2.55
3.04 . ................ 2.45
3.20 ..i........ .... 2.05
3.34 ......... --... i-85
3.49 ------.......-- .i80
401 ------- ------- o -65
4.07 ---................ 1-55
4-17 . ------.......-- 1.40
4.27 .... .......... 1.25
[-15 a. m. and 5.20 p. m.
it or write
* J. F. LIVINGSTON,
Columbia, S. C.
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Ls Follows: -
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en's Tailor-Mde Suits 390
- .. 300
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