The Providence news. (Providence [R.I.]) 1891-1906, 1896-02-12

Before Justice Matteson and Justices
Stiffness and Till1nghast was heard the
petition of John Nelson, found guilty by
a Jury of having received stolen goods,
for a new trial, or such other relief as the
court might see fit to grant.
1t will be recalled that in December,
1894, Nelson was indicted on a Oh large OF
receiving stolen COLO, the property of the
Waite Thresher Company, ana that on the
first day of January, 1895, he was
arraigned end pleaded not guilty. On the
18th day OF January his trial began, and
continued on the lStn and 10th of the
tame month, and then the case was ad-
j~ourned until Monday, the 21st, when on
the calling of the jury one of the jurors
was found TO be absent. A telephone
message was received TO the effect that
the absent juror was i'll.
The petitioners claim that ssid juryman
was not examined by any physician or
other person sent or instructed by the
court TO determine whether or not he
would he able, within a time,
To conclude the said trial, and the de-
PENDANT was offered no opportunity to
Ascertain the facts regarding the alleged
illness of said Juror, but the court there
upon discharged the Jury against the OBJ
lection OF the defendant.
The jury was soon after empanelled for
n second trial OF the case end ounse for
the defendant put in a plea that the
prisoner mad been once in jeopardy.
TO this plea the States attorney demurred
and the demurrer was sustained and tue
plea overruled, the court refusing to
certify the demurrer to the appellate di-
vision. The trial resulted in the convic-
tiun of Nelson on the 18th day of Fob,
1895, and the petition heard today was
FLED.
The points relied upon by the de-
fendant Nelson, in his petition, are as
follows:
First, that the grounds contained and
pleaded in the pleas puts darien c%onten-
snce Of once in jeopardy are sufficient in
law TO entitle the defendant 10 a dis
charge. Second, that the above pleas
having been filed by consent Of the court
aud demurred to, the demurrer should
have been certified to by the appellate
division. Third, that the demurrer filed
qrdy, was a general demurrer and not
properly formed under section 16, chapter
10, of the judiciary act which requires that
demurrers shall state the specific grounds
of the demurrer. Fourth, that the court
erred in refusing to discharge the defend
ant upon motion made at the beginning
Of the second trial. Fifth, that the court
erred in admitting the of Mr..
Parker aad others, while in the defend
ants store, but not in his hearing and
presence.
j. jerome Hahn, one of the counsel for
Nelson, opened the case, reviewing the
points raised and dwelling on the matter
Of demurrer. In regard 10 the latter the
chief justice said they did not POW seem
material as the whole case was before the
court.
.Hr. Hahn next turned his attention to
the discretion used by the court in a
criminal case, claiming the same was a
legal discretion and should be exercised
by the court in conformity with well
known rules. Quoting from the brief in
the case prepared by himself and Wilson
a Jenckes, he continued: 'The discharge
of a jury in n criminal case upon a valid
indictment, without the consent OF de-
PENDANT ana not called for by imperious
necessity, operates as acquittal and bars
a further trial"
The same counsel cited the case Of
state Of Kansas VS.. smith to the effect
That after the evidence, both for the State
Rnd for the defense, had been given, the
cry were permitted to separate and go TO
heir homes. During this recess it was
reported to the court that one OF the
Jurors was sick and unable to attend and
he Jury was discharged. IL was held that
he dc ermination of the fact OF sickness
pm the part OF the absent Juror, should
rave been by judicial methods and that
hese included the presence OF the Defend
ants, while that fact was being investi-
gated, their right TO produce Witnesses,
nd OF REORGANIZATION of witnesses.
The testimony Of Detective Parker IL
vas argued. at length, and In the petit
toner's BRET there were many cases cited
n support Of the contention, was not ad-
nissibie because IL was not first shown
hat the conversation between witness and
y~allace, who took the stolen jewelry TO
Nelson TO sell, was i'm the latter's presence
hearing and that the admission OF this
estimohy did great injury to the defend
mt
Attorney General, I'm opposition TO the
[rantjng OF the relief sought, argued n
n%istrial, caused by the sickness of a Juror,
rsates no jeopardy and that the matter