The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-02-12
THE MOTION ARGUED
TESTIMONY TAKEN on SMITHS NO.
TIoN FOR A NEW TRIAL.
Witnesses Contradfcted by the
Jurors whose Competency Is
Questioned.

The attorneys for Winifred L. Smith,
the convicted slayer of Western Il. Thomas,
are prosecuting their motion for a new
trial in the Criminal Court. The argu-
Tnent began before Judge McCray yes
terday morning and will be continued to-
day. The defendant was IN court with
his stepfather, Dr. Wands, and his friend,
Harry Sells. Smiths face did not yester-
day betray any anxiety he may have had
to the outcome of the application for
a rehearing of the case.
Before the court took up the exanina-
ton of the claims Of the defense
the prosecution filed the affidayits of
Jurors Louis A. Theme and Hezekiah
Jones, both making general denials of
the allegations set out in the assertions
OF the defendant.
The first of the atlantis to testify was
called by attorney Duncan The witness
was Walter Barr, aged nineteen years,
resident of Broad Ripple. His testimony
was to the effect that on the Sunday after
the Thomas murder he talked with HeZe-
kiah Jones at the home of Amos But
terfield, at Broad Ripple. Jones and But
terrified are brotherS-in-law. The afiiant
recalled the occasion because he had dis
cussed the Thomas murder with Jones.
He remarked that he did not believe Smith
should suffer death for the crime and
Jones replied that Smith ought to be
hanged" George Sinclair. on the same
Sunday, conversed with Jones on the
merits of the murder. He swore that the
latter used the expression, Smith ought
to be lynched."
w. r. Miller was the first witness called
to attack the competency of juror Theme.
Miller walked to the courthouse on the
oe <J,a ,f "a fria1
Theme, he averred, declared that he was
not fit to serve on the jury because he
'.believed Smith ought to be hanged" w.
A. Patterson testified to being present on
the occasion of Themes remark to Mill
Ter. This affiant was not positive, but be-
lieved Theme had used similar words IN
his presence on the morning after his
selection as a member of the jury The
prosecution, for the purpose of impeach-
ing this testimony, called bailiff Royster
to the stand. The bailiff said that after
Theme had been accepted as a juror
Monday about o'clock, he was permitted
TO converse with no one outside OF the
jury box and consequently could not have
expressed himself in the presence of the
at4iant Patterson after that hour.
Prosecutor Elan examined juror Theme
and ELECTED the statement that he had
not talked with Patterson at the time
mentioned by the later. He admitted hay
father. but denied having expressed an
opinion as to the case Hezelxiah Jones,
the other juror attacked, denied having
expressed opinion in the presence of
any of the atlantis who had preceded him
the witness stand. He remembered
having met Walter Barr Amos Butter
field and George Sinclair at Broad Ripple
the Sunday after the homicide, but was
positive they did not discuss the murder.
Attorney Duncan commenced the aTgu-
ment on behalf of the defendants motion
late yesterday evening. He dwelt chiefly
upon the alleged errors of the court in
the instructions given the jury. One of
the chief contentious was that the court
gave undue prominence to the testimony of
against the evidence of the defendant. He
cited authorities from 105th Ind. where
the relatrix and the defendant were both
interested in the result of a suit. The
court singled out the only two witnesses
whose moral character had been attacked
and told the jury that this should be
taken into consideration. In addition the
court instructed the jury to the effect
that If 1t was found that any witness had
made statement materially different out
of court this should tend to impeach the
that if such fact was proved such evil
dence tended to discredit the witness. The
contention was made by Mr.. Duncan that
the court erred in that part of in
struction twelve, where he said, IF in
this case you find that he simply laid
his hand on the accused and the latter
not in danger and had no reason to
believe that great bodily harm i'm
nlinent, the killing was not justifable'
In support of the proposition the attorney
called the attention of the court to the
Ind. relating to the rule of reasonable
Hc1,hf