The San Francisco call., 1895-12-03
All the Papers Are Finished
and the Argument Be.
gins To-Day.
CHANCES OF A NEW TRIAL.
Juror Smyth's Denial of Newspaper
Influence and of a Private
Visit to the Church.

The reading of the affidavits in Judge
Murphy's court on the motion for new
trial in the Durrant case ended this morn
ing and presentation of counter affidavits
by District Attorney Barnes began. Dur
rant offers no new facts or arguments in
support of his request, and his solitary
allegation that unfair newspaper publica-
tions during the trial injured his case
stands practically unsupported by any
other statement.
There appears to be no new evidence,
and the new witnesses that were in effect
promised are not in view. What the de-
fense has in prospect cannot be imagined,
but the whole fabric of argument in favor
of the motion has been rudely shaken by
the few affidavits which the District At
torney offered yesterday In opposition.
At the opening of court General Dickin-
dered by Judge Murphy, who objected to
changes or interpretations in the original
instrument. This referred to the refusal
of the court to issue citations to certain
newspaper men calling upon them to show
cause why they should not be punished for
contempt, and also to disturbance at the
time Mrs. Vogel finished her identification
of Durrant.
81 wish to say that no such disturbance
took place." said Judge Murphy. II
watched closely for such an outbreak, but
none came"
AT the conclusion of General Dickinson's
reading Mr.. Barnes read an affidavit reier-
ring to Secretary McCoy's remarks to
Juror Truman and for which the former
was fined $3.50 for contempt.
The District Attorney sought to show
haf MnGNT nl-a nct IND hot rn-
mark was so regarded by both Truman and
himself, and the matter had no influence
whatever in the case. The District Attor-
ney then offered his own affidavit, in which
he admitted all the newspaper publica-
tions, but denied specifically that they
prejudiced or injured the defendants
case.
This was followed by separate affidavits
from all the jurors denying that they
were influenced by anything outside of
actual testimony offered in the courtroom.
That of Juror Smyth was quite lengthy,
and in i: he strongly denied that he had
read during the trial the newspaper articles
upon the case. He stated that he talked
with the father of the defendant after the
trial and told him that his sons testimony
regarding the movements around the sun
burners impressed him unfavorably, and
it was a physical impossibility for Dur
rant to have done what he said he did dur
ing the time fixed by George King.
MIR. Smyth also denied that he visited
Emmanuel Baptist Church during the
trial except in company with his fellow
jurors, the Judge, Sheriff and counsel.
Regarding an article which appeared in
the Examiner he says:
l do not know Frank T. Cusack, who has filed
an affidavit in this case, by name. do know
that subsequent to the rendering of the verdict
of the jury OF which was member In the
above-entitled case, and after had been dis
charged as such juror, was interviewed at my
residence by gentleman who represented
himself as a reporter of THE CALL, but whom
have since learned was not reporter OF THE
CALI. This was the only interview had with
rant case. Perhaps this men was Cusack.
Neither at that interview with Cusack, II 1T
was Cusack, nor to any one else, at any time
or place, under any circumstances, did ever
state that | deferred from asking any
questions as juror. or from doing or saying
anything from or by reason OF any fear OF or
comment by any newspaper or newspapers or
anything else. Any such statement purport
ing to emsnate from me Is unqualifedly false
and must arise from entire Misrepresentation.
In his own affidavit the District Attor-
ney referred to the change of venue matter
and stated that the defense failed to take
the proper steps at the proper time for the
making of application, and consequently
forfeited all right to complain of the re-
fusal to a request that in substance was
never made.
At the conclusion of the reading of the
affidavits General Dickinson asked for two
days continuance in which to prepare ar
gument. Judge Murphy considered that
begin this morning at 10 O'Clock.