The morning news. [volume] (Savannah, Ga.) 1887-1900, 1896-02-02
THEY SAY THE COURT ERRED.
GROUNDS URGED BY sMALTs COUN-
Sell FOR A NEW TRIAL.

Errors I'm the Judges Charge, and
Newly Discovered Evidence Made
the Basis of the MOfIon-Mr. West
Wanted to Know What One POr-
ton of the Charge Meant-The
State Holds That the Newly DIscov-
cred Evidence is CumuIative-The
Matter in the Hands of the Court.
There was quite an audience in the su-
perior court room yesterday when the mo-
ton for a new trial for Abe Small. con-
victed Of the murder of Policeman Neve.
and sentenced to hang, was argued by
Messrs. Charles y. West and T. p. Rave
mel for the defendant and Solicitor Cen
eral W. W. Fraser for the state.
Those present appeared to listen to the
arguments made on the law points with
as much interest as they did to the evil
dence submitted on the trial. The argu-
ment began about IL O'Clock in the morn
ing and was concluded in the afternoon.
Mr.. West made the leading argument
for the prisoner. The grounds urged for
a new trial were errors of law in the
judges charge, and the discovery of new
evidence. Mr. West said he felt 2 deli
cacy in disputing the correctness of the
verdict in view of the fact that the court
oner.
Mr.. West quoted portion of the courts
charge which he characterized as unin-
telligible English, and he defed anyone
to make its meaning clearly understood.
He questioned the right of the court to
make use of such expressions in his
charge to jury as Il will go this far and
say, etc." and said the charge in many
places was prejudicial to the prisoner,
nHs.~ al tiki IarA
himself. He held also that the court err
red in persistently referring to the officers
OF the law when no officers of the law
had gone to arrest Small, the affair haV-
ing taken place outside the jurisdictional
limits of the city.
The new evidence referred to is that of
Josephine Aggleberger, alias Josephine
Young. by which latter name she was
known to Small. She is said to have been
an eye witness to the crime. Her affida-
VII, made and sworn to Nov. 49, 1895, is as
Il was sitting by Abe Small, near
Lovers lane, in a field, when l saw two
policemen, mounted, riding by. One was
rldlng a white horse and one was on
dark horse. The policeman riding the dark
horse, who was Policeman Neve rode past
where we We're and then wheeled round
and came toward where we were. When
he got to within about twenty steps of Abe
Small he Ohe policeman commenced to
hre at him. He never called to him to
surrender; in fact, never said anything,
but as soon as he could get his pistol
out he commenced to fire at Small. Small
was then stepping backwards to where /
was.
After the first policeman fired and
Small had returned the fire from a pis-
tol three colored men who were creeping
in the grass said, that is the man. then
the other policeman commenced to shoot
at Small also. The firing was pretty quick
then and Small found his rifle and COM
menced to shoot with that. One shot seem
eu 10 MT morse and then Policeman NeVe
was shot. Small did not shoot until more
than one shot was fired at him by the po-
Hceman who shot first
After NeVe was shot the other poIice-
man ran his horse toward the Thunder
bolt road. During the firing the balls
came near me and l rolled under a wire
fence and commenced to run to where a
man was blowing. He said to me, why
don't you stop; they will kill YOU and I
said to him, they are not shooting at me;
they are trying to kill a colored man.
Small submitted an afidavite through
his counsel in which Ii was stated that
the woman was known to him under the
name of Young, and that is was impossi-
claims that her evidence presents new
material facts, and is not simply cumula-
tive.
Mr.. Fraser argued that the evidence
submitted on the trial had clearly made
out a case of murder. The defendant, he
said, had had a continuance of two weeks
had proceeded then without Josephine
Young. He contended that the woman's
dilhdNll anu statement constituted only
cumulative evidence similar to other tes-
umony that had been submitted on the
trial, and with regard to the statement
that the arrest was attempted by private
citizens instead of officers of the law as
was stated in the charge, Mr.. Fraser read
several supreme court decisions showing
that in cases of felony the supreme court
upheld the right of private citizens to
make arrests. He endeavored to sustain
the judges charge on that point
Mr.. Ravenel based his conclusion princi-
pally upon the judges charge and espe-
cially upon one point where Judge Falli-
giant charged that if the defendant had no
knowledge of the purpose of the parties
making the arrest when they came sud
denly upon him he had a right to defend
himself. Mr.. Ravenel held that this was
directly the opposite of the law on the
subject, for he urged, even though the de-
PENDANT knew the parties came to make
an arrest, if they came UP and made a
sudden and surprising attack upon him
with weapons, he had the right to defend
himself from such attack. If an officer
of the law or any party making an arrest,
make an attack upon his prisoner after
he had him under arrest, Mr. Ravenel con-
tended the prisoner would have the full
right to denfend himself as the occasion
taken to the charge, and upon these were
based the principal grounds of the motion
for new trial.
During the argument the court took oc-
casion to compliment counsel for the de-
PENDANT very highly upon the able and
earnest manner in which they had con-
Quoted the case. Judge Falligant took the
papers and held the matter under advise
ment.