The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1873-05-18
THz Tuprza OA1DwEnr HoM1o1DE-

OF teneraF Sessions, Judge 0RrpenteI
presiding. was opened ysstetdSy morn,
ing. at 10 o'clock. ior the purpose Of
hearing the arguments on the motion
for new trial in the case OF Captain
George Tupper, fonnd guilty OF man
slaughter, last week. Some of the coun.
sci on both sides being absent in attend
ance at the Court in Oreenville, by
sgreemen. the hearing was postponed
until Z o'clock P. NJ. 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 had had a deputy With the
prisoner day and night. off and on. Mr..
Ttadewell, the counsel for the defence,
stated that he knew of no Law 10 confine
the prisoner to Jail. The Judge re-
marked that the Sheriff was ee obacio the
jailor of the County, and he must con-
fess that. in his mind, there was but one
| method for him to pursue after the con.
viction. The CLERK was. therefore, or
! dered to issue rule against the Sheriff,
to show cause why he should not be
fined for contempt Of court. The ser.
vice Of the same was made returnable
next Wednesday. The Judge also in
quired regarding the order given by him
to the Sheriff to keep the jury together
or IN charge. when they were not in
their seats, during the progress Of the
trial, aud ordered the Clerk to make the
proper eRtry upon the records regarding
the samo order or its violation. The
Conrt then adjourned until 7 O'Clock.
Upon re.assembling, at o'clock, the
Court announced it's readiness TO hear
the motion OF the prisoners counsel for
h new trial.
General II. c. Butler. in pursuance OF
arrangement, read the grounds upon
which the motion for a new trial was
based, which are as follows:
The counsel for the State will please
take notice that the motion will be- mads
before his Honor Judge Carpenter, at IL
O'Clock NJ. on Saturday. the 10th
instant, Mt his chambers in Columbia. for
new trial in the above case upon the
following grounds:
/. Because his Honor erred-as it is
respectfully submitted-in this, that
after four Of the jury men had been
ordered to stand aside by the State, npon
the drst call, in permitting The State to
challenge two of them peremptorily,
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 Perenptor15 one OF
| Fhooo krpo 90 - - sIJJfyS
upon his roir dire that he had neither
relationship, interest. bias or prejudice,
or had expressed an opinion for OF
against the prisoner.
| 2. Because .hs PS.smptory challenge
OF two OF the jurymen by the State, as
above act forth, is in derogation of the
rights OF the prisoner. as secured to him
ny the constitutions OF tba State and oj
the United States.
3. Because of the irregular dispersion
of the jury and improper conduct ol
some members Of the panel, during the
progress OF the trial after the adjourn
ment Of the court, and their minelinp
promiscuously with the citizens OF the
city of CoIumbis, Notwithstanding q
positive order of his Honor the presiding
Judge that they should remain together,
under the charge of an officer of the
court.
4. B5canse 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 trial had made pro-
gress.
5. Because his Honor erred, as il is
respectfully submitted, in excluding
from the stand witness, whose testi.
mony, important to the prisoner. had
boen discovered after the trial com.
menoed. upon the ground that he had
been in the court room after the order
had been 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.
7. Because the verdict is contrary to
tho law and the evidence.
The Judge stated that the frst thing
in order was the introduction OF proof oi
the grounds which required it.
| Gen. Butler then proceeded to read
the affidavit Of Col. Wm. Wallace.
Mr. ioumans objected 10 ine readipg