The morning news. [volume] (Savannah, Ga.) 1887-1900, 1889-01-23
SMITH MAY YET GO FREE.
ANOTHER PHASE OF THE MURDER
CASE LIKELY TO COME UP.

Lawyers Discussing the Effect of a
Mistrial Declared on Sunday-A Par
allel Case in the United States Dis
trict Court Three Years Ago-Effect
of Counsel MeIdrims Waiver at the
Time OF the Disagreement.
viii a.plea of former jeopardy be set up
by counsel for w. p Smith, the slayer of
Frank Rustin, is question that is being
asked among the legal fraternity. The
ground for this plea, if it is made, will be
that mistrial was declared on Sunday. AS
the clock struck | o'clock Sunday morning,
Jan. 10, Judge Adams, from the bench di-
rected that inquiry be made Of the jury if
there we're possibility OF an agreement,
and message was returned in the negative,
whereupon the court had the jury brought
out, the foreman withdrawn, mistrial was
declared, and the prisoner was remanded-
A PARALLEL CASE.
A parallel case was passed upon in the
United States district court in this city at
the March term 1885, Judge Emory Speer
presiding. 1t was in the case Of the Quilted
states VS.. Frank E. Dyer, mate Of a vessel,
for maltreating a seaman on the high seas.
AT the November term 1854 Dyer was tried
before Judge Bowman and jury. The case
Wehp W Jig jury Oh GodJuIudy oNeuAHS. VA
Sunday morning a child Of one Of the
jurors died. This fact having been brought
to the attention Of Judge Bowman, the
Jury then being out, he with Clerk Erwin
entered the United States court room, and
finding there was no possibility OF an agree
ment had the jury brought out, polled,
drew juror and declared mistrial, which
was entered OF record by the clerk.
At the March term 1885, Judge Seer,
who had ouaoaaIaI 1nIuN RoUr1on
on the bench, and when the case was called
to put Dyer on trial again, his counsel, the
late j. }. Abrams, put in plea of former
jeopardy. The court held that the whole
proceeding which took place on Sunday
was void, Sunday being dies non, and it
was just the same as if the record had
shown that the jury had never taken any
action on the case at all after going out.
The court sustained the plea and directed
the discharge of the defendant
CONTINGENCIES MAY ARISE.
1t may be stated that the action of Judge
Bowman was entered by the clerk as of
record on Sunday. What effect this would
have if Clerk Carr entered the mistrial in
the Smith case in Saturdays or Mondays
proceedings of the superior court, will give
rise to differences Of opinion. If the couns |
does not impeach the record before the close
of the term, said an eminent legal authority
last night, 1t may operate as waiver II the
case should not como on for a second trial
until another term. But the attorney, who
expressed the above opinion, said that the
record may be impeached before the close
of the term, if the action of tho court were
not ente ed as of record on Sunday.
Another complication is likely to arise.
Between II and II o'clock on Saturday
night Judge Adams sent a note of inquiry
to counsel for defendant asking if they de-
sired to be present to receive a verdict, or
a notice of mistrial if a conclusion was not
reached by the jury. Hon. p w. Meldrin
waived presence, stating that the prisoners
counsel would be satisfied with whatever
the court might see fit to do in the case.
The question may arise, did counsel by this
act waive the right of his client to put In a
plea such as arrested a second trial in the
Dyer case, or did he in waving presence
assume that the court would not sit dies
non. The case is likely to become csle-
brated from legal standpoint as well as
the tragic one which characterized it.