Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1896-11-18
DAVIS NAY YET co FREE
Man Accused and Convicted of Wrecking
the Rock Island Train.
DISCOVER A FATAL DEFECT IN THE LAW
section ~ of the Criminal Code H.
Admitted to Hr Noid ana tnc
End May BE the Mans
Liberation.

LINCOLN, Nov. SPECIALIZATION one
Of the most memorable fights in the history
Of criminal Jurisprudence on the part OF
counsel for a man charged with murder in
the first degree. George Washington Davis
the negro convicted OF murder in the Sec
ond degree for causing the wreck on the
Rocl, Island August ., 1894, Is now likely To
DO turned loose from the penitentiary a
free man. This curious turn IN the wheel
OF fortune comes about through section W
Of the criminal code, under which Davis
was convicted, being declared void. Attor-
ney General Churchill this morning appeared
before the supreme court and made a verbal
statement first to the above effect, after
ward making the same admissions in his
brief Davis was tried upon two counts, the
first charging him with murder in the first
degree and the second murder in the sec
ond degree He was found not guilty on
the first count. but guilty on the second
The section under which he was convicted
and which is now declared by the attorney
general to be void Is rather peculiar one
and reads as follows:
Every person who shall wilfully and ma
/ liCiOuSly remove, break, dlSlltCe, throw
down, destroy or in any manner injure any
| non, wooden or other rail or any branches
or branCh-ways or any part OF the track
I or any bridge, ViaduCt, culVert, uestle work
ombanltment, plrapct or other MIXTURE, ul
any part thereof attached to or connected
with such tracks of any railroad In TINS
state now i'm operation, or of which shal
hereafter be put in operation, or VINO shAl
wilfully and maiClously place any obstruc-
ton upon the rail, or rails, track or irachs
of any such railroad. shall be punished 10y
imprisonment in the pcnitontiary not less
than one year nor more than twenty years
Provided, however, that II any person Shal
by the commission OF either or the aiole-
said offenses occasion the death of any
person or persons. the person or persons
so offending shall be deemed guilty OF muir
der i'm the first or second degree, or man
slaughter. according to the nature of the
offense and on conviction thereon shall Dc
punished as in other cases.
Davis counsel Messrs Adams and Ault
schuler. contended in their brief that this
section was Illegal and void from the fact
that it failed to specify penalty and was
clearly uncertain, and this contention was
conceded by the attorney general who sait
in conclusion:
We believe, however, there can be No
| escape from the conclusion that the portion
! of section 3d. after the provision, is anso
| lutely void for uncertainty; but If not thct
| the court should have in his instructions
| told the jury what under this section was
murder in the first degree, what in the sec
! ond degree and what was manSl5llEhlet
not having done so, the case must be re
versed.
It is expected that the supreme court viii
| hand dowr it's decision reversing the case
! eltlef tnlS evening OF lOAullu N' nc a.
| torncys interested in the case state that 4
the case is remanded for another trial Davi:
will be sent back to the county jail; but Il
! 1t is simply reversed he will walk forth from
! the penitentiary free man. AttorneJ
| Altschuler who Is greatly elated over his
| successful fight for Davis. Is of the opinion
| that n writ of habeas corpus would now liz
and one may be applied for Altschulel
thinks that even II Davis is tried again con
viction cannot be secured
Omaha people in Lincoln: At the Lindel
Mrs Howard Kennedy, c. l.. Baufier, w
A. Travis w. NJ. Strawn. At the Capital
| William Mancriff. Edison Rich. At the Lin
coln-J. C. Gown, o. C. Redick, ii. h
Smith, ]. b. Meikle, Charles Ogden. Charlie
b. Keller, William d. Beckell, l.. j. Sutcllffe
win II. Thompson, ID. W. Merrill, Il. Wake
| ley, VIII Strong, John Harberg, John l.
Webster, John A. Krug, c. s. MONTGOMERY
l.. N. Gonden, d. d. Gregory c. f. Erick
son, II. s. Horton, Il. f. Youngfelt, K. w
Breckenridge. George C. Bonner