[Chattanooga Times, 3/12/1906]

Order Made by Judge Clark at an Early Hour Sunday Morning After Hearing Argument on Appeal From His Decision of Midnight Declining to Interfere in the Execution of
Edward Johnson, the Chattanooga Negro, Which is Set For Tuesday Next.

The execution of Ed. Johnson was this morning ordered stayed ten days. The order was issued by Judge Clark after 12:30 o'clock this morning, and after he had been in his private chamber more than one hour going over the application of Judge Shepard for an appeal to the United States supreme court.

After hearing the argument advanced by Judge Shepard and considering the case, Judge Clark ordered that the execution of the negro be postponed ten days in order that the attorneys for the negro may lay the case before the United States supreme court. He declined to grant a direct appeal of the habeas corpus proceedings to the supreme court, but consented to postpone the execution ten days and afford Johnson's attorneys opportunity to lay the case before the United States supreme court and see if that body will take up the case.

The conference in Judge Clark's private office was not concluded until nearly one o'clock this morning. It was attended by the attorneys for the state and for Johnson. At no time during the trial of the consideration of the motion for an appeal was Johnson present.

The stay of execution is not intended to alter the plan to return Johnson to Chattanooga and he will in all probability be taken away from Knoxville today by Sheriff Shipp.

Judge C. D. Clark, of the United States court, devoted Saturday afternoon and night to a hearing of the application for a writ of habeas corpus in the case of Ed Johnson, the Chattanooga negro sentenced to hang Tuesday on a charge of criminal assault on the person of Miss Nevada Taylor, several weeks ago. The arguments in the case were heard Saturday night and at their conclusion Judge Clark announced his decision. He declined to interfere with the affairs of the state court and unless a stay of execution is secured before Tuesday Johnson will expiate on the gallows on that day the horrible crime with which he has charged and of which he was found guilty.

Immediately after Judge Clark announced his decision, Judge Shepard, on behalf of the petitioner, prayed an appeal and the judge, with counsel on both sides, went into the judge's private chamber to consider the petition.

The hearing of Saturday was one of the most notable ever held here. It was commenced at 2 o'clock and adjourned at 6, reopened at 7:30 and not concluded until nearly midnight.

The trial brought prominent gentlemen from Chattanooga, among them being Judge S. D. McReynolds, who passed judgment on the negro, Attorney General N. M. Whitaker and his assistant E. S. Daniels, who prosecuted Johnson in the Hamilton county court, Judge Lewis Shepard, chief counsel for Johnson and several other attorneys who were connected with the case from the beginning.

The hearing was set for 12 o'clock but it was not commenced until two hours later. The regular business of the court was suspended to give precedence to the more important hearing of the application for a writ of habeas corpus, next Tuesday being the date fixed for the execution and immediate steps in the negro's behalf, if the sentence passed on him is not to be carried out, being necessary.

The opening of the trial found the court room crowded with spectators, fully two-thirds of whom were negroes, brought by interest in the fate of one of their race. The entire proceedings were heard, with the closest attention and the trial was intensely interesting.

In the opening of the hearing Attorney General Matt Whitaker, of Winchester and Assistant Attorney General E. S. Daniels, of Chattanooga, appeared to represent the state. Judge S. D. McReynolds, of the sixth judicial circuit, occupied a seat just to the left of General Daniels, who conducted the examination of witnesses for the state.

S. L. Hutchins and N. W. Parden, both colored lawyers of Chattanooga, first appeared for the petitioner, Ed. Johnson. Later Parden announced that Judge Lewis Shepard, of Chattanooga, who was chief counsel for petitioner during his trial in Chattanooga and who is one of the leading criminal attorneys of the state, would take charge of the petitioners interests in the hearing.

General Whitaker announced to the court that he had filed answer to the petition for the writ of habeas corpus.
 The hearing proper was opened by the reading of the petition for a writ. This lengthy petition was read to the court by attorney Parden. A resume of the petition was printed in the Journal and Tribune Thursday morning and the charges which it contains in the utmost degree.

Response to the Charges.

General Whitaker then offered the answer to the petition on behalf of the state. In the response it is denied that the petitioner Johnson is about to be deprived of his life without due process of law, as was charged in the petition. It is denied that he was deprived of counsel in the final stages of his trial in Hamilton county criminal court; the charge that Johnson's trial was not public was also denied and charge denied in toto is that made in the petition that Johnson was in a manner forced to testify against himself; the statement that the Hamilton county jail was attacked by a mob which sought Johnson's life while he was confined there is denied; the allegation that the judge of the court declared before the trial came up that he would not consent to a change of venue was pronounced as being false and it is claimed that the attorney general for the state and the sheriff of Hamilton county went so far in assisting the attorney's for the defense as to furnish them with knowledge of the evidence they intended bringing into the trial against Johnson. It was admitted that a cordon of deputy sheriffs and police guarded the Hamilton county courthouse while the trial was in progress but such guard was for the protection of the life of the petitioner, it is claimed. The charge that the father and mother and other relatives of the prisoner were denied the privilege of attending the trial was also denied, it being claimed that they never applied for admission to the court room during the trial. The allegation that the panel of the grand and trial jurors was illegally drawn was denied in toto and the claim was made that the names of negroes did appear in the jury box and that in the past negroes have been serving on juries in that county. The charge that the prisoner was intimidated into accepting the verdict of the lower court, then declining to ask for an appeal because of the belief that he would be mobbed if an appeal was taken was declared as being false and the charge that the right to enter a motion for a new trial was denied with the statement that no motion for a new trial was entered in the time as prescribed by law. It was admitted that a new trial was asked but such motion was offered, it is answered, in the reply to the motions, after the expiration of the three days within which a ruling required the petition or motion for a new trial be furnished. When the motion for a new trial was offered it was challenged by General Daniels on the ground that the time limit had passed. After making the above answer to the petition, the respondent prayed that the petition be not allowed.

After General Whitaker concluded reading the response Judge Shepard for the petitioner requested a subpoena for J. P. Pemberton, deputy clerk of the criminal court at Chattanooga. He stated that Mr. Pemberton was in the city but had not been summoned. Judge Clark instructed Deputy Clerk Eldington to issue an "instante" subpoena for Pemberton and an officer was sent out to serve it. Pemberton soon appeared at the court room in response to the summons.

At the request of Judge Shepard, Deputy Clerk Eldington administered the witness oath to W. G. M. Thomas and Foster V. Brown, both Chattanooga attorneys who were introduced as witnesses for the petitioner. Mr. Thomas was one of the attorneys who represented Johnson during the trial, and Mr. Brown was one of the advisers.

Foster V. Brown Testifies.

Mr. Brown first assumed the witness stand and was interrogated by Judge Shepard. The witness testified that he was informed by Judge McReynolds that he (Brown) together with Attorneys Pritchard and Cameron, of Chattanooga, had been designated to act as advisers n the interest of Johnson and had gone into a discussion of the case with Johnson's active attorneys as to whether of not an appeal should be taken. During that conference, Mr. Pritchard had told what he had heard a leading citizen say that he "was opposed to mob violence, but if Johnson's case was appealed, he would lead a mob to lynch him." Mr. Pritchard also said at the conference that he had learned from a high police authority that if Johnson's case was appealed the protection of the police at the jail which had been furnished would be withdrawn. Mr. Cantrell, another attorney for Johnson, was insistent, testified the witness, that if an attempt to appeal Johnson's case was made, the prisoner would certainly be mobbed, and not only Johnson would be lynched, but probably other negroes confined in the Hamilton county jail would be mobbed along with him. Regarding the mob, Mr. Brown testified that he lived near the jail and had seen the mob and believed it to contain one thousand to fifteen hundred persons. Two outer jail doors were battered down by the mob, he stated. Mr. Brown did not swerve from his original testimony during the cross examination conducted by General Daniels.

Attorney Thomas' Testimony.

Attorney Thomas was introduced. Mr. Thomas certified to having aided in an effort to having Johnson's trial postponed because it was believed that it was not the time or place to conduct the trial because of the intense feeling against the negro. The judge and the attorney general of the court, though, differed with him, he stated, declaring that the situation would grow worse rather than improve. A change of venue was wanted, he said, but he was led to believe that dilatory measures would result in the lynching of the prisoner and it was also feared that if an attempt to secure an appeal was made, that trouble would certainly follow.

Mr. Thomas stated from the witness stand that General Whitaker had reported to him that Governor Cox had declined to furnish troops for the protection of the prisoner because he was of the opinion that the case should not be tried at that time, or if it was, a change of venue to Nashville should be secured.

As to the question of a legal error in the trial, witness said he knew of none.

No Negro Jurymen

Regarding negroes serving on juries, he stated that he had not seen a negro on a Hamilton county jury since the jury law of 1899 became effective.

Witness testified that during the trial and immediately after it he received many anonymous communications concerning the trial and the part he played in it, some of them condemning his course while others approved and commended it.

J. P. Pemberton, deputy clerk of the Hamilton county criminal court, took the stand and was asked a question concerning the number of names kept in the jury box. He stated that he thought the number to be about 4,000. He recalled having seen two negroes on juries during the past several years.

No Appeal Allowed.

N. W. Parden, the negro lawyer and whose name appeared at the bottom of the petition in Johnson's behalf, was sworn and placed in the witness box. The body of his testimony was that Johnson was convicted on Friday, that he (Parden) was employed by Johnson's father to defend the negro on Saturday and on Monday he went to see Judge McReynolds to see about filing a motion for a new trial. He was told by the judge, he testified, to return the next day and consult with him in the matter. On the next day, Tuesday, he testified, he was told by the judge to enter his motion in the proper style. When the motion was offered to court, he said, it was contested by General Daniels on the ground that the time for filing the motion had already expired. Judge McReynolds declined, he testified, to consider the motion for a new trial.

With the conclusion of the testimony of Parden, Judge Shepard rested his case and the side of the state was taken up. As state's witnesses, Judge McReynolds, Generals Whitaker and Daniels and Sheriff of Hamilton county were sworn but only the first two persons mentioned were placed in the witness stand.

Judge McReynolds As Witness

Judge McReynolds, in assuming the stand, briefly outlined the history of the case, as it was heard in the court over which he presided. In [...illegible...] the charges made in the petition he made several denials. The charge that he had stated before the Johnson trial came on that he would not consider a motion for a change of venue [...illegible...] accused had been denied the privilege of attending the trial was pronounced another "falsehood" and as for the charge that the jury was illegally constituted, it was placed in the same class, while the jury he pronounced as being one of the best and most competent he had ever seen in a jury box.

Judge McReynolds was on the witness stand for nearly, if not quite an hour and some of the assertions he made were just about as strong as those contained in the petition filed in behalf of Johnson.

At six o'clock Judge Clark informed the attorneys that time for an adjournment had arrived, but if it was so desired for convenience to the Chattanooga attorneys and witnesses he would conduct a night hearing at which the hearing could be completed. Such an arrangement was what was desired and an adjournment was taken until 7:30 p.m. at which time the arguments in the case could be taken up, the state having announced that its testimony was in and any further proof that could be offered would merely be accumulative.

Night Session of Court.

 At 7:30 o'clock the proceedings were restarted and the arguments commenced. The opening argument was made by Judge Shepard, chief counsel for the petitioner. Judge Shepard spoke for fully two hours. He was followed by General Whitaker, who made a brilliant address. General Daniels closed the state a little before 11 o'clock.
 Judge Clark then announced the decision above. Judge Clark said that from the testimony laid before the court the federal authorities had no right to interfere with the process of the state court and he declined to grant the writ of habeas corpus.

Sheriff Shipp and Prisoner.

 Sheriff Shipp of Hamilton county came to Knoxville yesterday to take charge of Johnson today....

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