The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1901-04-26
new TRIAL
GRANTED
Rehearino Of the Metz
ger Case.
DECISION RENDERED
Motion For New Trial Argued
In Judge J. c. Boone's
Court at Lis


of the probate court has rendered his
decision In the motion for new trial
of the malfeasance in office case
wherein he recently found l.. p. Metz.
ger, solicitor of the city of Salem
guilty on one Of the charges brought
in the complaint fled by members of
the Salem city council. Following is
Judge Boone's decision in part covering
the salient points brought out in the
arguments in behalf of the motion for
new trial:
The motion for new trial set up ten
causes why new trial should be granted
and the court will now consider the
sixth and ninth cause, namely, acci-
dent and surprise which the defendant
could not have guarded against by or
dinary prudence, and newly discovered
evidence material for the defendant,
which he could not, with reasonable
diligence, have discovered and pro
duced at the trial.
In support of the above defendant
introduced six affidavits, one of F. b.
Jennings, Mary Camp, Nellie Camp
George T. Farrell and two of his own.
AS held in the case of r. r Co. VS.
Long, oath o. s. Report 1873, 1t becomes
my duty to pass, not only on the COM
potency Of the newly discovered evil
dence, but also upon the effect it should
have upon the result of the trial in
order to determine whether 1t affects
or not materially the substantial rights
of the defendant.
have deemed it proper to admit
the affidavit of F. b. Jennings which is
admitted for the reason that no testi-
mony was given by him in the former
trial, and for the reason that 1t Is new
evidence, not merely cumulative, as to
what Mr.. MetZger testified to on some
matters, but because 1t casts some
light on the subject of the ticket
whether It was complimentary or 9th.
erwise and is more definite and Ger.
tain testimony than any other produced
at the trial as to what kind of trans
portation was used; this person having
procured it, and is further admitted
because 1t shows new subject matter
as to how the ticket came to be issued
originally to A. w. Taylor, then city
solicitor, through Amber, and shows
new testimony how 1t came to be ex-
tended and tends to show from new
witness new evidence as to how Mr.
Metzger came by it. and for the reason
it tends to show it was not compliment
tary, or a pass and will be admitted and
given whatever weight seems just and
right.
The AFFIDAVIT of Lewis p. Metzger
is admitted for the purpose of show
ing the kind of ticket as shown by
his exhibit "A" in said affidavit at
tached, 1t being new evidence not had
at the former trial, the exhibit "B"
and &c" attached as tending to show
employment by Amber in direction
and by means other than his, Metzger's,
testimony. Exhibit "B" and exhibit
&c" are admitted. Amber and others
then being willing to present him with
$50 for services mentioned in exhibit
"E," and for the reason 1t Is new sub
ject matter and shows that at that time
Metzger was honorable to his trust.
Lewis Metzger's affidavit, SO far as
relates to the conversation with Miss
Doyle, and George T. Farrel's affi-
davit, SO far as relates to conversa-
tion with Miss Doyle are not admitted
for the reason the witness was within
the courts jurisdiction, If not in the
court, and this testimony could have
been furnished by Miss Doyle herself
had defendant used ordinary prudence.
The affidavit of Mary Camp will be
admitted because of the Metzger affi.
davit being admitted with its new sub.
ject matter as this corroborates new
subject matter not brought out be.
fore.
The affidavit of Nellie Camp is ad
mitted on account of 1t showing that
Metzgar claimed that in August, 1900
Amber owed him $25 on opera house
license, no evidence being produced
at former trial showing MetzgeI
claimed Amber owed him prior to the
defendant being accused, and b. s
Amber and M. l.. Mardis affidavits are
admitted because the statute provides
for their admission. ~ .u
At the trial Mr. Metzger denied the
truth of any understanding that he
was to have free transportation and
said he always expected to pay wher
he knew to whom he ought to pay.
From Metzger's action, his admis
sion and other evidence that tool
into consideration, found that he hat
no right to demand payment for SAID
$3.50, as | then stated, for railroad
fare from Salem 10 New York. undel
the ordinance, unless the money ha(
been actually expended by him, and the
evidence tnen DeIOre me ulu not excuse
his acts In collecting and keeping the
money, although he said he intended
to pay for the vicket.
Now he has had an opportunity Il
learn from evidence adduced at tn,
trial and at the hearing Of the motions
for new trial that no one expecte,
him to pay for the ticket and hotel ex
penses, that both men so furnishe,
him free of expense. He ought now /,
feel as do. that he now owes the cit,
of Salem $3.50, and suggest that |
no desire to do right, he will at til,
proper time refund the amount TO TN
city. II this was q civil suit to re
cover the amount due the city, woul,
say no owed the city that amount an,
that he should collect bis bills from tn
parties that owe him, but not hold tn
citv money To await his cOnyenlenc