The Pastor, the Circular, and the Hung Jury

JURY HANGING OUT. No Agreement in the Nichols Case After Six Hours. A FIELD DAY FOR THE ORATORS.

The criminal libel case against Rev. Nichols, which has occupied the attention of Judge Humes and a large crowd of the curious for three days, went to the jury at 5:30 p.m. yesterday, after half a day in court. Instructions were given and a sealed verdict was to be opened at 9:30 this morning. Until that time the outcome of the trial will be unknown save to the jurymen.

The character of the defense yesterday was shifted practically to the one ground of privileged communication. Counsel for the accused laid stress upon the fact that the circular alleged to be libelous had been brought through Dr. Barnes to the attention of the conference and acted upon by a committee, which by exonerating Dr. Ford had waived any objection that might be raised because Mr. Nichols was not a member of the conference. This point was brought out emphatically by Mr. Winsor in his argument.

The usual large crowd was present all day long, the number of women exceeding, perhaps, that in attendance Wednesday or Thursday. Everyone watched the proceedings carefully and intently, and twice the interest rose to a high pitch. The first time was when the boy Robert Scott, adopted by Mrs. Ivy, was called forward within the bar; the second when Mrs. Ford, after a searching examination as to her relations with Mr. Burke, and the divorce said to have been enacted in the smoke house at the Phillips place—characterized by Mr. Ronald as the most brutal questioning he had ever heard—after bravely struggling to be calm, broke down and cried, and continued in a voice broken by sobs: 'I am telling the truth, I am telling the truth.' This caused a sensation, the women showing the deep sympathy they felt for the witness, and many of them went forward as if to assist her, and it brought the recital to an abrupt and dramatic close.

The morning session was taken up with Mr. Nichols on the stand, his re-examination continuing from the day before. He acknowledged having distributed at Tacoma a number of circulars—how many he did not know—for the purpose of letting members of the conference know the facts in reference to Dr. Ford. The circular he considered fair. Its sole object had been to investigate him, and not Ford, in order to find out whether Ford had grounds on which to sustain his charges; he said the matter should have been taken up, but that body had exonerated Dr. Ford and refused to do its duty.

The defense then called Rev. Mr. Callee, and drew from him an admission that the first time he met Mr. Burke was at Squire Ivy's house in the presence of Mrs. Ivy, his widowed daughter, and others, but an objection by the defense to this testimony was sustained by the court. The object—to demonstrate that Mr. Ford had not given Mr. Burke a letter of introduction to Mr. Callee—was attained by reducing Mrs. Ford to the stand.

Mrs. Ivy testified: 'I first met Mr. Burke at home. He was traveling through the country two days, and intending to stop at the house incidentally spoke of knowing Mr. Ford. We at once welcomed him, and Mr. Burke, who was at the house, was introduced to Mr. Burke, but no letter was passed between them. Afterward Mr. Callee called Mr. Burke the smartest man he had ever met, saying one could learn more from him in fifteen minutes than from Mr. Ford in a lifetime.'

After detailing minutely the circumstances of the boy's life, Mrs. Ford was asked about the boy Robert living at home on the place of Mrs. Ivy. His name, she said, was Scott. He had been born five or six miles from here, and had been taken by her mother. 'Is he in the courtroom?' 'Yes, sir.' 'Let the Ivy boy stand up,' was then commanded. A neatly built, bright boy rose, looking back and forward to the people in the room, all eyes being turned upon him as the youth whom the defense was endeavoring to prove the illegitimate son of Dr. Ford. But attention was drawn from him and again directed to the details of the marriage ceremony.

Dr. Ford then took the stand for the first time. He said there was absolutely no truth in the statements of Mr. Callee that his present salary was less than $1,600 a year, and he claimed his income to be in the neighborhood of $300,000, and that his counsel had examined records and found them correct.

The case had no sooner been closed than Mr. Wiley, swinging his arms like a windmill, entered a protest, demanding to have an entry made on the records of the improper and unprofessional conduct of the attorneys for the state in that they had three times said Mrs. Ivy, who was on a sick bed, was able to testify to certain matters. This onslaught called forth an answer from Mr. Ronald, who with equal voice and physical exertion asserted the entire propriety of the steps taken, saying he could find authority for it in a recent decision of the supreme court. Judge Humes calmed the two steaming lawyers by explaining that the jury would consider only the facts presented by witnesses on the stand. This closed the morning session.

Argument for the Prosecution.

The afternoon was given over entirely to argument, each of the four attorneys consuming an hour almost to the minute. The speeches were all worthy efforts, ranking with those recently delivered in the election cases before Judge Lichtenberg. Mr. Wilsbie, who opened for the state, made severe strictures on the accused, and compared him to Satan. This called forth an equally severe criticism from one of his opponents, who declared that in all his years of experience before courts of justice he had never indulged in so much needless abuse as he had heard that day. The three veterans—Winsor, Wiley and Ronald—were at home, the former especially acquitting himself well and drawing praise from numbers of the audience, who almost to a man deplored the fact that the matter had ever been brought into court and condemned the author of the circular.

Mr. Wilsbie, after dwelling on the attitude of the state, said the case properly belonged to the criminal department. 'It is my duty to inform the jury,' he said, 'that this and not the Methodist Episcopal church is the proper tribunal for the settlement of the question. What vindication would it be for Dr. Ford to obtain a judgment for damages against that man, a penniless tramp preacher? On the stand the old hypocrite smiled and grinned in glittering glee at what he considered his points, but when I saw that light in his eyes there flashed before me the image of that nun with his grizzled beard shaved to a cynical goatee, his mustache waxed, a being with horns, a cloven hoof and a tail.' He referred to Nichols as a man creeping like a reptile into the house of the Lord after they had established themselves in this new country, called him 'an imp of hell,' and said he did not deserve the consideration, not even the contempt, of an ordinary man. He regretted that the punishment for a being who would vilely slander an honest woman, a faithful wife and a Christian mother was only slightly greater than that meted out to a petty thief.

Wiley for the Defense.

Mr. Wiley, who followed for the defense, dived at once into ecclesiastical history, relating how Henry VIII was given the title 'Defender of the Faith,' his quarrel with Rome as to his marriage with Anne Boleyn, and how at last Protestant England had been founded on the career of the tyrant. Turning quickly to Napoleon, he spoke of the divorce of Josephine and the marriage with Marie Louise, in order that the blood of the Hapsburgs might mingle with that of great Frenchmen, and of the Pilgrims, who, not content with worshiping God according to the dictates of their conscience, tried to make everyone else think the same as they. The orator quoted poetry and declaimed from Shakespeare and finally exclaimed:

'You may ask what has this to do with the question before the court? It has much to do with it. I have seen in this very room the same domineering spirit that has governed the church. This spirit of religious intolerance has been the foundation of this Methodist struggle. But this quarrel will not hurt the church. Strong upon her own dead self, she will look to it that her institutions are kept pure. This old white-haired man whom my young friend has called a descendant of the devil belongs to that class which has ever been the balance wheel of civilization.'

The speaker continued by declaring that the circular had originated not in malice, but in an honest attempt to overcome intolerance. Referring to the merits of Nichols, he said: 'This old man has endured the hard road that religion might live. He has crossed the briny deep and penetrated into the depths of heathenism to elevate the standard of mankind.'

After calling Dr. Ford a Napoleon destroying the church and robbing ministers of their salaries, Mr. Wiley said: 'All I ask of you is to find a verdict in accordance with the facts, but I declare to you the facts justify a verdict of acquittal; that you say of this gray-haired client of mine, We find no crime in him.'

Nichols as a Defender.

Mr. Winsor, after speaking along the lines of civil and religious liberty as suggested by Mr. Wiley, expressed the hope that Mrs. Ford be eliminated from the case. The argument continued in reply to the contention that if the accused had ground for believing that the charges against Dr. Ford were true, he was justified in bringing the matter to the attention of the church, and that the matter being privileged he was entitled to carry his fight for purity still further. In describing the impressions Nichols must have received, Mr. Winsor displayed skill in analyzing the motives governing the human intellect, and his discourse was in a psychological character. He said to the jury: 'I want you to see whether this defendant had probable or reasonable cause to believe that there was anything wrong.'

Mr. Ronald for the defense cleared his way through the smoke left by what he termed 'a pyrotechnic display of fireworks,' pausing for a single instant to speak of the grandiloquent words, the turkey-gobbler strut and the peacock swell so characteristic of Mr. Wiley, and then taking up an elaborate discussion of the facts. These he developed by reading the charges and taking each one up separately, considering whether it was a crime, whether it was true, and whether there were justifiable ends. 'Mrs. Ford does figure in the case,' said the attorney. 'Suppose the defendant is acquitted. You say to the world that the man is innocent, and the world replies that the woman is guilty. His gray hairs aggravate the crime and make it the more heinous. Lay aside all discussion of civil and religious liberty. It does not belong here. I will dismiss the subject with a word: We don't people our jails nor our penitentiaries from the churches.'

Turning then to the alleged happening at Ozark, Mr. Ronald cast discredit on the report in these words: 'The nasty scene took place in the smoke house. We got it from a man, who got it from another man, who got it from a woman, who got it from a little girl, who got it from a smaller girl who saw it.'

'It was a smart trick,' continued the attorney, 'to bring in the story of an illegitimate boy. Why, gentlemen, Ford was married in 1873. The boy who is now 19 was not born until after that date, and Mr. and Mrs. Ford have lived together twenty-three years.'

Mrs. Ford's Life Story.

'What nemesis has pursued this woman? Early betrothed to a young officer, a defender of his country's flag, after a few weeks of married life she was left a widow by his falling in the lines of the enemy. There was Burke, a gentleman, and no moral coward; and in the county of Powell he, too, went down at the hands of the Ku Klux and another tragic scene closed on the life of that unhappy woman. She next met Ford, and it seems that their souls were made for each other. She has had by him five children, four living and one dead, but it were better they were all dead than that she should be hurled from the pinnacle which a Christian woman would be proud to occupy and be hurled characterless before the world. You have witnessed the last act, and you saw in her face the agony as she answered the questions called forth by the investigation of a rotten mess raked up by her pastor of twenty years ago.'

Judge Humes' Instructions.

Judge Humes' instructions were quite lengthy. On the main contention of qualified privilege, he said: 'A case of qualified privilege may exist where circumstances may cast upon a person the duty of making a communication to some other person. In such a case the person making such communication must honestly believe that such is his duty; and in addition he must further be actuated by an honest purpose and desire to serve or attain some public benefit or justifiable end. And in seeking to redress some public grievance, such person must be careful to apply to some person who has jurisdiction to entertain the complaint or power to redress the grievance, or some duty or interest in connection with it. Communications made to strangers who have nothing to do with the matter are not privileged.

'The privilege must not be abused, for if such a communication be made maliciously and without probable cause, and without good motives or justifiable ends, the pretense under which it is made, instead of furnishing a shield, will aggravate the offense. A person cannot avail himself of a privileged occasion willfully and knowingly to defame another.

'Although the occasion may be privileged, yet it is not every communication made on such occasion that is privileged. It is not enough to have an interest or duty in making a communication; the interest or duty must be shown in making the communication complained of.

'Even when a defendant, acting under a strong sense of duty, makes a communication, he must be careful not to be led away by any feeling into extravagant or unwarrantable expressions. The privilege extends to nothing which is not true, and which is not justified by the occasion. A letter or circular may be privileged as to one part and not as to the rest; and even where the expressions or words employed are allowable in all respects, the mode of publication may take it out of the privilege.

'Did the defendant publish of and concerning Rev. T. H. Ford a libel? If so, then you should convict the defendant, unless you find: 1. That such matter is true; 2. That the defendant honestly believed it to be his duty to make the publication complained of, and that he did publish it by reason of duty, which is what the law means by justifiable motive; 3. That it was published with an honest desire and purpose of effecting some public good or benefit, which is what the law means by justifiable ends.'

At 12:35 this morning the jury was still out, without any prospect of agreement.