The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1873-05-18
TIE TupPkR CALDWELL HoM1c1DE-

OF tenerat SeSslons, Jodge SarpentsR
presiding. was opened Yesterday morn
ing. at 10 o'clock, for the purpose Of
hearing the arguments on tue motion
for new trial in the case OF Captain
George Tupper, found guilty of man
slaughter. last week. Some OF the coun-
sci on both sides being absent in attend
unce Mt the Court ia OreenvilIe. by
agreement the hearing was postponed
until o'clock P. hi. Mr.. Youmans, for
the prosecution, made the inquiry Of the
Judge regarding the custody OF The pri.
soner during the interim that has elapsed
since his conviction, stating that he had
been informed that the prisoner had not
been confined. The Judge asked the
Sheriff regarding the same. The latter
stated that he lad Ind deputy with the
prisoner day aud nigbt, off and on. MIR.
Tradewell, the counsel for the defence,
stated that he knew of no law to confine
the prisoner to jail. The Judge re.
| marked that the Sheriff vas er oD1cio the
jailor of the County, and he must con-
fess that. in his mind, there was but one
method Tor him to pursue otter the con-
viction. The Clerk was, therefore, or
dered to issue rule againet The Sheriff
to show cause why he should not be
6ned for contempt Of court. The ser.
vice of the same was made returnabIe
next Wednesday. The Judge also in.
quired regarding the order given by him
to she Sheriff to keep the jury together
or iu charge. when they were not in
their seats, during the progress OF the
trial, aud ordered the Clerk to make the
proper entry upon the records regarding
tho samo order or its violation. The
Court then adjourned until O'Clock.
Upon re-assembling, at O'Clock, the
Court announced its readiness to hear
the motion Of the prisoners counsel for
u new trial.
General NJ. G. Butler. in pursuance of
arrangement, read the grounds upon
which the motion for a new trinl was
based, which are as follows:
| The counsel for the State will please
take notice that the motion will bs made
before his Honor Judge Carpenter, at IL
o'clock NJ. on Saturday. the 10th
instant. ut his chambers in Columbia. for
q new trial in the above case upon the
following grounds: :.
l. because his Honor erred-as it is
respectfully submitted-in this, that
after four OF the jurym men had been
ordered to stand aside by the State. npon
fhe hrst call, IN permitting Lhe State to
challenge two of them pcremptori]y,
without assignment Of cause when they
were recalled and presented to the pri.
soner to be sworn after the panel had
been exhausted; and in permitting the
State to challenge peremp ptorAy one of
these two after hs was re.c.IIfed, sworn
upon his roir dire that he had neither
relationship, interest. bias or prejudice,
or had expressed an opinion for or
against the prisoner.
| z. Because the peremptory challenge
OF two OF the jurymen by the State, as
above set forth. is in derogstion Of the
rights OF the prisoner. as secured to him
ny the constitutions OF the State and of
the United States.
3. Because of the irregular dispersion
of tho jury and improper conduct OF
some members Of the panel, during the
progress OF the trial after the adjourn.
ment OF the court, and their mingling
promiscuonsly with the citizens OF the
city of Columbis. notwithstanding q
positive order of bis Honor the presiding
judge that they should remain together,
under the charge of an officer Of the
conrt.
f. Because one OF the jurymen who
was sworn and sat at the trial had ex-
pressed an opinion before he was sworn
adversely to the prisoner. saying that he
had made up his mind against him !;
| which fact was not suspected or Disco
vercd until after the trinl had made pro.
gress
5. Because his Honor erred, as it ia
respectfully submitted, in excluding
from the stand witness, whose testi-
mony, important to the prisoner, had
been discovered after the trial com
menced, upon the ground that he had
been in the court room after the order
had boon made excluding witnesses from
the presence OF the court while the testi-
mony was being taken.
6. Because evidence highly beneficial
to the prisoner has been discovered since
the termination of the trial.
Z. because the verdict is contrary to
tho law and the evidence.
The Judge stated that tue irst thing
in order was the introduction OF proof Of
tho grounds which required it.
Gen. Butler then proceeded to read
the affidavit of Col. Wm. Wallace.
Mr., YOumans objected to the rendin1