The morning news. [volume] (Savannah, Ga.) 1887-1900, 1896-04-08
ARE sNALL,s NEw TRIAL.
The supreme Courts Decision Based
on an Error in the Charge.

The Supreme Courts Decision Based
on an Error in the Charge.
There was some little surprise mani
tested yesterday when the report came
that Abe Small, who was convicted Of the
murder OF Policeman Jansen Neve and
sentenced to hang, was granted a new
trial by the supreme court
The history OF Smalrs crime is we'll
known. When Neve and a posse of off,
GERS went out to arrest him. a fight en-
sued. and Small shot Neve to death.
Small made his escape, and remained at
large for year and a half He was cap
tured in Baltimore last summer, and
has been in jail now nearly ten months.
having been tried in the superior court
on the charge of murder and sentenced
TO hang.
smalfs attorneys. Afessrs. Charles n.
West and T. p. Ravenel took the case
10 the supreme court, alleging errors in
the rulings and in the charge Of the court
The case was argued before the supreme
court nearly month ago. and the decis-
ion reversing the judgment OF the lower
court has Just been rendered. The SUI
preme courts decision was based alto
gether on an error in the charge OF the
lower court. 1t being held that the lower
court did not give in charge 70 the jury
to the right Of a defendant or criminal,
who Is about to be arrested, to resist any
atAaEh UL violence lnaut on MS person.
even though he knows that the officers
nave come to arrest him.
Under the law Small can be tried again
during the present term Of court. His
| trial Will be arranged for, t. IS under
! stood, Just as soon as day can be Sc
| cured for the purpose. II II is possible
| 10 do so, he will be tried al this term, but
/ II may be necessary Tor the trial to go
/ over to the next term, on account Of the
| fact that the remainder Of the present
| term Is so well taken up with civil BUSH
Of kaH .aa 4 M Of Na
| preme courts decision Is as follows:
| Smalls VS.. The State. Before Judge Fall
hgant; Chatham superior court.
| Lumpkin il. The fact that a fugitive
/ from justice is in a state OF armed h0stH-
/ lty to, and in apparent defiance of, the
| lawful authorities, may be proved upon
/ MS trial for an alleged murder Of one au-
| thorized TO arrest him, though this fact
| was unknown to the deceased, If upon such
| a trial 1t was a vitality important Issue
/ whether the accused was resisting a law
| tul attempt to arrest him, or In good faith
| defending himself against an unlawful as
sault upon himself. The evidence in ques-
ton could not, Of course, illustrate the
| conduct of the deceased, but was relevant
| as fact or circumstance throwing light
upon the conduct and motives of the ac-
| cused at the time of the homicide.
2 Where evidence, partly competent and
/ partly incompetent was offered and OBJ
Jected to as q whole, the illegal portion
/ not being specified nor objected to sepa-
| rately, admitting all of such evidence af-
| lords no legal cause OF complaint TO the
| obJecuhg party.
g. The court is not bound to give in
| charge requests which, though abstractly
correct, are not fairly adjusted to the case
on trial.
4. A fugitive from Justice accused of a
| felony and knowing that he Is liable to be
| arrested on that charge, may neVerthe-
| less resist with such force as may be
| necessary an unlawful attempt to commit
a crime upon him, whether such an at
| tempt Is made by an officer armed with
a warrant for his arrest, or a private cit
| izen under circumstances authorizing him
| to make the arrest and this is true, al
| though the fugitive may have known
| he was liable to be arrested by the per-
| son making the attempt.
| 3. 1t is one thing to resist a lawful ar
| rest, and quite different thing to resist
| an assault or other crime upon the per
| son of the party liable TO be arrested
| and the latter cannot be deprived Of his
| right of self defense, either because the
| other party could lawfully have him ar
so. 49, .r+-a
6. In view of the evidence introduced
| for the defense in the present case, the
| accused was entitled to have the primer
| pies of law above afihouheAd given in
charge to the jury AS thiswas not done
| and as the charges complained of in the
| motion for new trial In effect excluded
| these principles from consideration by the
jury, there must be new trial.
Judgment reversed.
c: n. West and T. p. Ravenel, for
| plaintiff in error.
]. NJ. Terrell, attorney general, and w
w. Fraser, solicitor general, contra.