The Savannah morning news. (Savannah, Ga.) 1900-current, 1900-07-10
NEW TRIAL REFUSED NELL.
uncE SAYS CONVICTION WAS DE-
handed BY EVIDENCE.

rAs Court Visits With the Weight
of severest Judicial COndemna-
zion the Crime of Which the De-
fendnnt Has Been Convicted-The
.didavits Relating to NewIy-Dis-
covered Evidence Disposed of
with "A WOrd-A New Trial Also
Refused by the Court in the Case
of Jake MOuItrie-BOth Defend
ants VIII Appeal to the Supreme
court for IA Reversal.
Iudge Falligant rendered a decision in
,he Superior Court yesterday afternoon
overruling and denying the motion for a
new trial in the case of w. S. Nell, con-
,tcted in that tribunal, of the murder of
lanes Buzbee and sentenced to expiate the
crime on the scaffold.
In rendering the decision Judge Falli-
cant visited with the severest measures
If judicial condemnation the crime of
which Nell has been convicted and dis
missed with word the voluminous aft
dsyits recently filed in court, upon which
,s based the application for new trial
upon the ground of newly Undiscovered evil
dence.
The decision rendered by the court over
ruling the motion and denying a new tri al
is as follows:
Under the evidence in this case a nd
the contentious of the parties, it was m
lnently proper to charge Section 70 Of The
criminal Code along with the other prin-
cples of the law of justiliabe homicide
having the application to the jury, ac-
cording to the evidence as they believed
il to be.
The siate did not consider it necessary
70 rebut the ground of motion based on
newly discovered evidence save by the
overwhelming evidence adduced Ola the
Trial. The annulling of this ground S fully
sustained by the principles of law recog-
nzed and reiterated in O'Nein against
the state.
This was a useless, causeless, defense
less and remorseless murder, without re-
de3ming feature. The motion for new
trial is overruled on every ground"
Judge Falligant overruled also the mo-
ton for a new trial in the case of James
Momtrie tried, convicted and sentenced
10 be hanged for the murder of Moses
williams. Aside from the interest in the
case of Moultrie. the decision gains an
added interest for the legal fraternity
from the fact that it is uFon a point
which has recently been the subject of
much discussion and of more than one
decision in the Supreme Colkt
1t relates to the propriety of the Judge
charging two sections of the criminal
code, relating to the law of justifiable
homicide, in connection with each other
The case cited by Judge Faliigant in the
decision and relied upon by him to up
hold its correctness. has been urged by
counsel for the defendant in support of
no h;
decision Judge Falligant says:
The real ground of motion is the al
legged error of the court in charging sec
ton seventy-three of the criminal code,
and the language used in presenting
same.
The very able OPT MON of Justice Lit
lie, in Powell agains the state, declares
1t proper to change the various sections
relating TO justihable homicide under the
CONVENTIONS raised, leaving the applica-
ton 20 the jury The jury could and
would have applied the same according
to the evidence, as they believed it TO
be. 1t would not be proper for the judge
to assume, under the contentious raised,
that the homicide occurred under either
Of the theories contended for. That is
question exclusively for the jury.
In view of tine FACTS that Jake Moul-
tre gave to LaVinia Nathans, the first
witness upon the scene Oh the nOHlClue,
in the presence of the dead, as a reason
for the killing: I don't NEEDLE anybody,
and he had no business in here fighting;
that, in spite of the appeal of Stella Will
Jams not to shoot he fired at the back of
his retreatinE victim three times, infict-
ing two NOR raj wounds; and of the precei-
ing scufflingl of which there was evidence
j, was proper in my judgment to charge
section 70.
The jury accepted the contention of the
state that Moultrie was the real aggressor.
The verdi ct is fully sustained by the evil
dence erd the motion for a new trial is
refused" -
Both cases. that OF Moutrie well AZ
that of Nell. will be carried at once oy
writ Of error to the Supreme Court.
Messr9. Twiggs and Oliver who represent
Moult RE, and Mr.. r. l.. Colding, who
represents Nell, are confident that they
viii be able, in the higher tribunal of JUS
tice, 10 secure new trials for their clients.
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