The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1898-01-25

49,, --s t~-S Suiv ueeo nOt lear the
maj result, as their verdict could NOT
anect u. All OF said facts whicn are
iuny set out and referred to In The
ne.acned and sworn afndavit Of J. NJ.
Aowers. which is marked exhibit A
ana attached to and made a part OF
this motion.
.. Because said verdict is contrary to
tne Law and evidence in that 1t finds
tue defenuant guilty OF murder In the
nrst degree, whereas even IL all the
testimony advanced by the State was
admitted by defendant to be true tho
state wholly failed to establish BY evil
uence that the homicide was commits
yea with that sedate and deliberate
mihd and formed design which consti-
tutes the express malice aforethousht
necessary to be proven by the State
in this case In order to make out a
case OF First degree murder.
All OF which above reasons were so
pre1udicial to the rights Of the defend
ant as to have prevented him from
obtaining the fair and impartial trial
as guaranteed by the laws and constr
tuition of the State OF Texas Therefore
defendant preys that the verdict and
judgment In said cause be ret aside
and that this honorable court grant
to the defendant new trial.
Virgil Galaher.
Inc aindavit OF juror Powers Is as fol.
lows: ,1s s. - +
Affidavit OF J. NJ. Powers IN state of
Texas VS.. Virgil Gallaher, No. $50.
I, j. NJ. Powers, 4 Juror In the cause
of the State of Texas VS.. Virgil Gala
her. No. n.Sb2, do freely and voluu-
tariiy and In the cause OF justice depose
and say and simply do make the solemn
statement following. to-wit:
l. was never thoroughly convinced
Y tnat the defendant was guilty of mur-
der In the first degree: that is, that said
uetendant ever committed the act
charged against him with deliberate
design and express malice afore-
thought, but that it was explained to
him and the others Of the minority by
Juror Fisher; that when they had agreed
upon the point that the said defendant
was guilty of murder the Judge would
not then permit them to disagree and
tnat the two Galveston city Jurors,
Rogers and Fisher, further argred that
they would not dare face the Calves
ton city people after returning any 9TH
er than verdict calling for the death
penalty; and further. that 1t was only
under the impression that Disagree
ment could not have been allowed by
the Judge that l finally consented 10
bring IN a verdict for the death PEN
atty.
Also that said Juror Rogers Informed
this affiant that it was currently re-
ported upon the streets of the city OF
Galveston that said defendant, Virgil
Gallaher. had criminalIy outraged and
raped the person of his mother, the
deceased, just before the homicide was
committed, and that there was good
reason for believing this story true.
That said affiant had never before heard
this fprribls and first in
formed Of this rumor by said Juror
Rogers; further. that said Rogers was
the first juror to demand the in
Fiction of the death penalty, and that
he persistently and constantly urged
upon the dissenting minority from the
very moment of entering the jury room
that such was his opinion, and That
nothing short of said capital punish
ment would be agreed upon by them
Chat is. he and Juror Fishery or ac-
cepted by the people of the city or State
at large; further, that said Jurors Rog-
ers and Fisher argued to myself and
the others of the minority, who resist
ed the intiiction of the death penalty,
that the judges charge authorized and
directed them, the Jurors, to consider
the burning Of the house as showing
that il said subsequent burning was
deliberately and premeditatedly done.
then this fact would show conclusively
that said homicide was committed with
deliberate design and express malice
aforethonght." That said Juror Rogers
further argued and affirmed that DR..
VARIED had examined the body of the
deceased woman and had found that
said report charging the rape of said
deceased woman by her son, the de-
PENDANT, was true and could be wholly
and absolutely relied upon; further.
that said Juror Fisher argued, pleaded
and stated TO this affant that he would
not dare return any other than YER
dict for capital punishment; that ne
himself would not go upon the streets
of Galveston with any milder verdict,
for If they did so both he and every
other Juror In said case would be In
danger of mob violence IL they return
ed any other verdict than for the death
penalty; that said Juror Fisher was
known to the other jurors as an old
resident and an ex-lnayor of the city
of Galveston, and beng SO prominent
and we'll informed man, said afhant
believed that said Juror Fisher was at
least In position, to know the truth
of said statement concerning the Bit
ter feeling and prejudice which existed
among the people of the city and coun-
ty. That said affiaut was never before
on a jury, and was convinced by SAID
Jurors Rogers and Fisher that after
agreeing upon the fact OF murder the
Judge would neither permit them to
disagree upon the penalty TO be as
sessed nor discharge them from further
consideration of said cause, and that
|, the said affiant, did no. know that
further instruction or explanation OF
the written charge could be asked from
the Judge. Said affiant did not believe
when said verdict inIlicting the death
penalty was agreed upon and returned
into the court, nor does he now be-
Iieve, that said defendant, virgil CAL
laher, was guilty of m1rder In the first
degree, ncr that thed cath penalty
should have been assessed In his case,
and only consented to yield to the ma
iority upon the representations that
were made by said Jurors Rogers ana
FISHER, that they, the jury had, as
aforesaid gone too FAR to be allowed
nv the court TO disagree, and that what
their verdict was could IN nowise af-
feet the defendant anyway. for II they
had gone too far they had pleased the
neopie and set themselves right before
The public. and that the higher courts
wo,iid correct any error or in1ustice
which might be in their said verdict.
That I the affiant, agreed 10 said YER
AZ. ,or The above reasons and pressure