The Goodland republic. [volume] (Goodland, Kan.) 1891-1907, 1902-08-22
SGHELL REFUSED NEW TRIAL.
Judge Held Grounds insufficient 70
Justify New Trial.
Attorney Joe Waters Contends For New
Trial BY Taking Exceptions TO In
struetiOns TO J ury-Inoompet--
enCy Of Juror.


on a motion for a new trial Of the ScheIl
case, but oTer-ruled the motion upon the
grounds that there was not sufficient ev-
idence to justify a new trial. Upon the
decision Of the judge, Attorney Waters
asked the court TO set a day when be
would present bin Of exceptions cover
ing the arguments made for a new trial.
Saturday, September Is. was the day
set, at which time the present status Of
the Schen case viii come to an end, 50
far as the district court Of Sherman
county is concerned.
When Sheriff Walker called court TO
order Saturday morning il was $50
o'clock. At the beginning but few we're
present to hear what the defense had 20
offer. Hoyt Andrews appeared for the
state and Joe Waters and z. +. Murphy
for the defense.
Immediately after S.the call toEorder
Attorney Waters close by whose side
was II. \. Schell-arOse and. began his
argument for a new trial. 1t was ex-
pected that Mr.. Waters would make q
hard fight upon the iEcompetency Of
Juror Andrews, but all that was soon
lost sight Of IN the vOluble arguments
which he made against Judge Smiths
instructions to the jury. Mr.. Waters
spoke briefly upon the incident sur
rounding Juryman Andrews shortly after
the killing Of Frazer. He said thatlthe
testimony of Emmett Lister was devoid
Of personal feeling or animOsity, and
went to shoW-whether Mr.. Andrews had
forgot it OF not-that Andrews had
said sOmel. time in Marchssssthsts Schen
ought to be sent to the penitentiaTy or
hung. Waters also alluded to the fact
that during the trial he called the atten-
ton Of the court, at the time, to con-
versatiOn between County Attorney An
drews and Juryman Andrews. As 70
this nothing was disclosed
In his talk Of one hour and half Mr..
Waters devoted the great proportion Of
that time to a criticism Of the instruc-
tons Of Judge Smith to the Jury. he
said that the jury should never have
been instructed upon the privilege Of
bringing il a verdict Of murder either IN
the first or second degree; that accord
ing to the testimony - the thought Of
these two degrees was entirely excluded.
Waters also thought that the instruc-
tons we're somewhat preiudiced against
the defendant.
After disposing Of much of Smiths in
structions, section by section, he re-
Ia q = -
himself as fitting to the case. The judge
I had accepted only a few paragraphs
/ from them. Through these the attorney
/ waded laboriOusly, claiming that much
| Of his set Of instructions which had been
left out should have been put in the
! judges document.
/ As opposed 70 q newstrisl on the
Y grounds Of the incompeteDcy Of Jury
man Andrews, Attorney Hoyt Andrews
/ presented, for the consideration Of the
court, an affidavit Of Juryman Andrews
confiictive Of Listers testimony, as 70
the time and statement set up by Mr..
Lister. To show that Andrews was not
an anti-Schell iuryman, the fact was
added that in the first two ballotings Of
the jury Mr. Andrews voted Tor scquit-
tai. and at DO time in their deliberations
did he vote for more than manslsughter
in the fourth degree. This affidavit was
substantiated by sffidavits from a major
ity Of the jurymen in the case.
After both sides rested, Judge Smith
reviewed the Andrews examination, and
said,that while he did not doubt Mr..
Listers sincerity and well-meaningness
be thought that Mr. Lister was perhaps
mistaken as 70 the statement he at
tributed. te Andrews.
Judge Smith then took up a rather
II modest defense Of his Own instructions
to the jury, and said that the criticism
was principally directed against parts Of
them, in an isolated way and not viewed
il the light Of the context. The judge
said the instructions should be viewed
as a unit-as a whOle-and taken in that
light he thought they were good and sp-
plicsble to the evidence introduced.
After Judge Smith over-ruled the mo-
! ton for a new trial. Attorney Waters
Immediately asked the court 70 set q
time when he might present bin Of ez.
ceptions, based upon his previous srga
ments for a new trial The Judge con
suited the counsel on both sides, and
Saturday, September 13. was agreed up
on for the final hearing
The bill Of exceptions Is PRACTICAL.
] the road Waters is travelling IN taking
: the case to the supreme court 70 secure
q new trial Waters seems bound 70 keeE
Ii n. Sche1 out Of the Penitentiary
{ and It looks as though be would do i
g. -