The morning news. [volume] (Savannah, Ga.) 1887-1900, 1898-10-16
ARE SMALL MUST HANG.
Supreme Court This Time Refuses
Him "a New Trial.

him q new FIhts
At the next term Of the Superior Court.
Abe Small. the murderer Of Policeman
Jansen Neve, will be sentenced to hang.
The Supreme Court has deoreed it, refus-
ing to grant him new trial after he had
been convicted for the third time.
The motion for a new trial was argued
before the Supreme Court about ten days
ago by Messrs. T. P. Ravenel and George
A. Mercer. Jr.. representing the defendant
and Solicitor General Osborne for the
state on the third trial of the case, Il
was naturally presumed that about all
the error had been done away with, and
1t was hardly expected that the Supreme
Court would give Small another chance
The circumstances of SmalPs crime are
familiar TO all Savannahians, since they
have been fully gone into on the occasion
little doubt that he had shot to
kill to avoid arrest, though
every effort was made to show that he
was fred upon first by the officer and
shot In self-defense. The Supreme Court
granted him two new trials on account
of errors in the trials in the Superior
Court but the third has been refused
and Small must go to the gallOws. He
will no doubt be sentenced the first week
IN December if not earlier, and pay the
death penalty the month following.
The opinion of the Supreme Court was
rendered by Presiding Justice Lumpkin.
The following point of alleged error were
taken up and discussed:
/. II was not, in the trial of a criminal
case, erroneous to peSmit the state to in
troduce evidence of a portion only of a
statement made by the accused al a pre-
vous trial. without requiring the state to
prove the entire statement on the for
mer trial. the court ruling that no part
of the statement would be excluded, and
The accused being given the opportunity
TO introduce 'the entire statement, If de-
sired"
q When, in the trial OF a murder case.
there was evidence showing that the ac-
cused, at the time of the homicide, was
a fugitive from justice charged with bur
glary, and the solicitor general in his ar.
gument before the jury inadvertently re-
ferred to the accused as "a burglar" but
Immediately and of his own motion with
drew this language and stated that he
merely intended to say the accused was
charged with burglary" and the Judge
followed up the correction thus voluntar.
lily made by the solicitor general with APP
propriate instructions to the jury, the i'm
propriety of applying to the accused the
term hrst above quoted may properly be
treated as having been cured and there
fore as constituting no cause for a new
trial
3. If the evidence is admitted without
restriction as to its applicability to the
issues Involved, counsel in commenting on
1t TO the jury has the right TO draw from
IL any differences apparently reasonable
and legitimate, and endeavor to convince
the jury of the correctness Of such infer
ences.
(a) That portion of the argument Of the
solicitor general of which complaint is
made Ia 20 L.
view of all the facts and circumstances
in proof, improper.
T. Where, In a trial for murder IT was
seriously contested issue whether the
fatal shot was fired by the accused or an
other il would, of course, be erroneous
for the judge to express or intimate an
opinion that 1t was fired by the accused;
but in determining whether or not a sim
gle sentence of the charge was In this
respect Objectionable, IL is proper to con-
slider the entire charge and all the in
structions given in connection with this
particular matter.
5. There was no error, while charging
upon the statement made by the accused,
In instrucung the jury as follows: III
you md the statement consistent and
true you have the right to believe Il in
preference TO the sworn testimony in the
case. You should not do so careiesslv or
capriciously; but under your oaths as iu-
tOiS, cohsluetnB MS statement In con-
nection with the sworn testimony in the
case, then testing 1t in the light of such
testimony, give 1t such weight as you
think proper"
o. Mere failure to have a verdict or YER
diets previously rendered in the same aese
covered up or concealed from the Jury
Will not, in the absence of any request
on the subject, be treated as error
4 The requests to charge, so far as
legal and pertinent, were so fully and
fairly covered by the general charge. Civ
en- as TO leave no room for doubt that the
contentious of the accused therein en-
braced were understood and intelligently
passed upon by the jury; several of the
requests were properly refused because
giving them would have put the Judge In
the attitude of expressing an opinion upon
contested issues of fact or of recurring
the state to carry a greater burden than
the law imposes. The evidence, though
conflicting, was amply sufficient to war
rant the verdict
judgement affirmed. All concurring. ex-
cept Little j., who dissents solely be-
cause in his opinion the charge referred
to in the fifth head-note was erroneous