Evening journal., 1896-02-20

October 1895, the day when tie
alleged crime for which these defendant
are charged. Was alleged to have been
committed, an insane patient In the Del
aware State Hospital for the Insane, and
was on the day that his testimony was
offered Incompetent as a witness as to
facts which might have occurred during
the time that he, the said David M.
NAPLES. was an inmate Of said institu
tion, and that. therefore. the osurt erred
10 admitting the said David NJ NAPLES to
testify In said cause
S-Thst the panel Of Jurors drawn for
services At the Court OF Oyer aud Ter
miner In and for NsN Castle county, in
the State OF Delaware, at the February
tern 1896, included among others, a
certain John Jallaher That the said john
Jallahsr did not appear at the same
court, but thst a certain John Gallagher
appeared and answered for the said
John Jallaher. That the said John
Jallaher's name was drawn by the
proper officer of the court as one Of
the Jury In this cause. That he. the
said John Gallagher, In response to such
call for John JallRher, took his place as
one Of the jurors In this cause. although
he had never been summoned 80 Juror
or called In any way; and that therefore
there WAS n mistrial Of this cause.
That the said indictment consists
Of two counts: which counts charge tho
said Daniel Brown and John J Swan
with inflcting divers mortal wounds upon
one Leon Plsa, by striking, kicking,
beating, strsngling, throwing. tripping
and Jumping upon the said Leon Pisa,
and so innicting mortal wounds upon
the head and right side OF him, the said
Leon Pisa, OF which said mortal wounds
the said Leon Pisa died. That the EVIL
dence offered by the state In this case
was that the said Leon Pisa died Of
shock, and that therefore the court should
not accept the verdict Of the jury In this
case, on account OF the vRriancs between
the allegations laid In the indictment
and the evidenoe.
10. The only evidence produced by
the state In this case, as to tho cAufe OF
the death OF Leon Piss Is that he. the
said Lson Pisa. died of shock. while it
is set out In the indictment that the
said Icon Pisa. died OF divers mortal
wounds upon the head and right side Of
him. the said Lson Pisa, inflicted by the
said Daniel Brown and John j.
swan, by striking. kicking. beating.
strangling, throwing, tripping and jump
ing upon him, the said Leon Pisa. and
that therefore the court should allow a
new trial In this case to the said Daniel
Brown and John J. swan, besAuse that
the cause Of death. according to the
states evidence, was not properly set out
In the Indictment.
IL. That It appears by the evidence
offered by the state In this cause. that the
only wound Of any Kind in the head Of
Leon Pisa WAS fracture or crack OF the
skull, aud confusion upon the right
side thereof. That by the evil
dsnce offered by the state there
Is no possible way Ia which
the wounds could have been produced
except by a fall upon the floor. the head
coming in contact Herewith That in
asmuch as the wound In the
head spoken Of In the indict-
ment is set out as having
been inflicted By the Aforesaid
Daniel Brown and John J. Swan by
striking. kicking, beatlng. strAngling,
throwing. tripping and jumping upon
the said Leon Pisa, that therefore, the
court should grant a new trial In this
case, because the Indictment does not
properly set forth the cause OF death
according to the evidence produced by
the state.