The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-01-04
FOR NEW TRIAL
In the Dcvinncy. johnson Case at.
A torneys nrc Arguing. y
NESSRS. MEYER AND HOWARD
Objected TO the Motion for a New
Trial, and Mr.. Boycc Supported the
Motion Arguments will be Con.
cluded This Morning by Congress-
man Dovcner-C Considerable Inter
est is Eyinced in the Outcome. r

Arguments on the motion OF the de-
tense In the Devinney-Johnson murder
case, were begun yesterday morning In
the criminal court, continued In the az
ternoon, and Will be finished this morn
Ing. Mr.. sam o. Boycc opened for tho
defense, and was followed By Messrs.
Meyer anu Howard for the state. In ol-
position to The motion. This morning,
the concluding argument OF the case
and defense will be given BY Congress-
man 3. 3. Dovener. Messrs. Boyca
and Duvener cannot see how decision
not 10 their liking can possibly be given
by the court. and on the other hand
Messrs. Meyer and Howard feel the
same confidence that the motion will be
overruled.
In his opening. Mr.. Bryce said he
would not argue the motion IL II were
not matter OF so much gravity. The
bare Introduction OF Il copy OF ME-
Howard's address before the jury would
decide the motion favorablv from his
point OF view. He felt confident the
verdict would be set aside. and cited
several reasons, including errors In rul-
Ing by the court, illegal Instructions by
the state, refusal TO continue the case.
refusal to rule favornbly on the appii-
cation for change OF venue: further 1t
was asked that the verdict be set aside
for lack OF proof that the defendants
fired the fatal shot or shots. 1nsut!ici-
ency OF the indictment was also cited,
He said the newspaper accounts OF the
murder has prejudiced the public
against the defendants, making n fair
trial In this county impossible.
In conclusion. Mr.. Boyce stated his
objection TO the part taken in the trla!
By Mr. John a. Howard. who had been
associated with the prosecuting attor-
ney. Mr.. BoEce then took up passages
in Mr.. Towards address to the jury,
and said they were distinctly objection
able.
At the afternoon session. Mr. Meyer.
the prosecuting attorney. opened for
the state. He first took up Mr.. Boyce's
point that the court had erred in not
granting continuance on account OF
the absence of Annie Riley from the
city. He replied with the assertion that
court can exercise its discretion in de-
Gliding such point, as it did do. Mr..
Boyce's objections to states instruc-
lions Nos. and he disposed OF by re-
ferring to case OF state VS.. Hobbs, In
which the same principle was at issue.
As to No. I, Nc Boyce had objected fo-
tile reason that the instruction had de-
fined first degree murder, 4 verdict for
which, he claimed, could not be based
on the Indictment found against the
prisoners. Mr.. Meyer argued that II
the indictment was good the instruc-
ton was good, too; there Is no such
thing as indicting for first or second de-
gree murder. The indictment had been
drawn In the form laid down by the
law OF the state. Supreme court deet-
sIons along this line were cited by the
-speaker. Mr.. Boyce, said Mr.. Meyer,
had objected to the sixth instruction
from the state, which stated in effect. II
the jury believed that Devinney and
Johnson followed the McLaughlins with
the intent 10 kill them. and each aided
and abettel In the crime, then the
jury should find them guilty Of murder
in the first degree Mr.. Meyer referred
10 the testimony OF the witnesses, Dix
on, Conner and Kemp. and Insisted that
their testimony showed that Johnson
and Devinnev followed the McLauGh-
Inns up town, located them, and then
followed them up and killed Charles
Mclaughlin.
Concluding, the prosecuting attorney
referred with some sarcasm TO the re-
marks Mr.. Boyce had made relative TO
Mr.. Towards association with the
State in the trial of this case. Mr..
Meyer said he had been gratlhed to
have associated with him such an able
lawyer as Mr.. Howard. There was
nothing reprehensible as to MIR. How
ards connection with the case; he had
been employed by citizens to cooperate
with the states attorney. Were anoth-
or case OF such gravity 10 come up, the
speaker said he would. of his own mo-
tion. seek the aid OF able counsel. In
order TO resist the very able counsel
such as represented the defense In this
case. He felt /. TO be his duty to DO
everything possible to r"otec; an. con-
serve the integrity, safeiy and welfare
OF the people Of this community.
Court adjourned until $3.50 this morn
ing. when Captain Dovener Will close
FOR. the defense.