The morning news., 1897-07-28
ABE SMALL PLAYS IN LUCK.
GRANTED a THIRD TRIAL BY THE
SUPREME COURT.

/ was "a tOilouuy betWecn n Juror ana
a witness During the Second Trial.
The Supreme Court Declared This
to Have Been Sufficient Ground FOR
Observation-Disclosures General Os-
borne Says Small VIII BE Put on
Trial without Delay.
Abe Small. the slayer of Policeman J. C.
| Neve, will have another trial. The su-
preme court 50 decided yesterday.
| The case was argued a week or ten days
! ago by Mr.. c. N. West, attorney for Small,
who moved for a new trial soon after the
verdict of the jury in the superior court
had been rendered
! The grounds for a new trial were force
| fully put TO the supreme court by Mr..
| West. The decision declares that the low
er court erred in not declaring a mistrial
| during the hearing on account of a colo
! guy, or controversy, between a juror and
a witness, in which the juror practically
called the witness a liar
This turn OF the case will arouse in
creased interest. The next trial, which
viii be the third trial Small has had, will
prove Of more interest than all Of the rest.
Small is now under sentence to hang He
has been under sentence once before, but
was granted new trial by the supreme
court on some alleged error on the part
of the court in delivering the charge to
the jury.
Small was charged with burglary in
conjunction with a negro named Chllds,
who has been tried and sent TO the peni-
tentiary. When Constable HumphTes
was chasing Small with a warrant in his
pocket Small retreated. Finally he turn
ed upon the constable and, unbuttoning
light overcoat, pulled out a rife, mucn
TO the surprise of the constable, and tax
ing deliberate aim at him, shot
him in the face, the ball pass
ing along his check bone, the scar of
which wound marks his face to-day. Small
then continued 10 retreat until he was out
of the city and in field south of Lovers
lane. There it is claimed he laid in wait
until other officers approached him. AS
they came up a pitched battle eusued be-
tween the officers and Small. There were
numerous witnesses on both sides of the
case as to who shot first some declaring
for the state that Small shot at the Off
GERS first, while others for the defense de-
clared that the officers began to fire on
the accused soon as they saw him. At
any rate Small did the most fatal work.
lie killed Policeman Neve.
The case came up for trial in the supe-
rior court, ana Small was convicted of
murder and was sentenced to hang. A
motion for a new trial was made by
Messrs. Ravenel & West, and was refused.
The case was taken to the superior court,
and new trial was granted, 1t being held
that the judge did not charge as fully as
he might have on the law allowing a man
the right to defend himself against an
attack of armed men, no matter
whether 1t is for the purpose of an ar
rest OF not, unless il is made known that
it is under the direction Of the law.
The case was brought to trial again in
the superior court, and another verdict
of guilty was rendered. During the trial
Juror Eason became involved with one of
the witnesses for the defense In a con-
troversy. The witness had claimed to
| have seen the encounter between Small
| and the officers from his house.
Don't you know that know where you
| live, and that / know there are trees in
front of your house which would prevent
| you from seeing this shooting?" asked
| Juror Eason.
The witness denied that there were trees
| in front of his house.
"sit down." the juror is said to have ex>
claimed 1t is upon this alleged colloquy
that the supreme court has allowed a new
trial
The controversy between the juror and
the witness occurred during the forenoon
| of the trial, and when the noon recess was
taken Mr.. West, counsel for the defend
| ant. sent out to the residence of the wit
ness and ascertained that there were no
/ trees in front of the witness house-that
| the witness had been truthful in what he
| had said and that the juror had been in
! error. Thereupon Mr.. West moved for
mistrial, on the ground Of the effect that
| the Jurors statement might have with the
/ jury.
The court ruled that the case would have
| to be tried. but took the precaution to
| charge the jury that the statement of the
| juror pas ruled out and should not have
| and effect whatsoever in the case in so far
| as IL was a statement of fact. The court did
not deem ii lawful or necessary that a
| mistrial should be declared simply because
/ jnror and a witness had become in
! volved in a colloquy, so long as any state
ment OF fact by the Juror was ruled out
which the court took particular pains to
/ do.
The supreme court decides, however, that
/ this was sufficient ground for the court
TO have ruled that II was a mistrial, and
/ thus granted a new trial to Small.
Solicitor General Osborne was seen by a
\ Morning News reported last night and de-
4 cared that the case would be brought up
/ at once for another trial. He said that
/ he did not feel disposed TO postpone the
/ case, which has been pending so long on
! technicalities any longer than Is necessary
! There will probably be a new trial at this
/ term OF the court. and IL may De that the
/ case viii be- called within the next few
/ days, II arrangements can be made for
! bringing II 10 trial.
/ The decision of he supreme court was n
! great surprise, particularly after the refu-
sails for a new trial In the cases Of Suui-
| van, O'Neil and Pat Kearney which were
argued about the same time the Small
case was argued.