The Bamberg herald. [volume] (Bamberg, S.C.) 1891-1972, 1902-05-01
TO BE TRIED AGAIN
Fate Of Mrs. Duncan, Charged
With Murder, Still in Doubt.
FORMER JEOPARDY PLEA FAILS
Judge Lumpkin, of Fulton County Su.
perior Court, Refuses Writ Of
Habeas Corpus-Judge
Gambler Sustained.

An Atlanta, Ca, dispatch says:
Judge Lurl pbin, of the superior court,
Friday refused the writ of habeas cor
pus which was sought to secuo the re-
lease from jail of Mrs. Moll!e Eady
Duncan, and remanded the prisoner to
the custody Of the sheriff.
The effect of this decision is. that
Mrs. Duncan must again face jury
on the charge Of the murder of her
husband, Policeman James M. Duncan.
Her attorneys, however announce that
they will appeal to the supreme court.
Judge Lunpkin held that Mrs. Dun
can was not placed in jeopardy by her
former trial and that even if she had
been, it would have been a matter for
the trial Judge to decide and not the
Judge of another court. He further
held that the order Of Judge Gambler
was conclusive of the truth Of the facts
it recited and that, accordingly, Judge
Gambler did not commit error in grant
Ing a mistrial, and that he did not
abuse his discretion.
Under the law the defense can ap-
peal both from the decision OF Judge
Lumpkin and the order Of Judge Can
dler to the supreme court, and they an
nounce that they intend to allow that
court to review both.
Mrs. Duncan was prepared for an
adverse decision and appeared un-
moved at the words which meant her
return to prison.
A large crowd, including many Ia
dies, attended the hearing Friday al
ternoon, although not so large as on
the previous day. Numbers Of people
were in the court room long before the
time set for the hearing, $3.50 o'clock.
The proceedings were opened by
Judge James A. Anderson, OF the de-
fense, who submitted a brief, contain
ing citations OF law. He followed this
with a short argument, after which
he left the court room, stating that ne
would be unable to remain throughout
the session.
"The theory Of the defense" }" he said,
as that she has already been placed
in jeopardy and cannot again be tried
for the same oifense."
Judge Anderson held the fainting OF
the defendant would not influence the
Jury any more than it would the trial
Judge. Judge Gambler, he said, was
not Influenced thereby, but, on the
other hand, he retained his GOODNESS
and poise and did nothing favoring the
prisoner.
Judge Anderson then declared that
the supplemental order of Judge Can
dler was void and declared the writ OF
habeas corpus the available remedy.
Solicitor Hill made the concluding
argument for the state. He read from
several sections Of law to develop the
point that persons charged with crime
cannot obtain their discharge by writ
of habeas corpus except where the
court trying them is without jurisdic'
ton or abuses it's discretion.
He argued that the plea OF Jeopardy
cannot be entertained under hGbea6
corpus, but that the remedy of the de-
fendant was to file plea OF former
jeopardy with Judge Gambler.
He chen explained the action OF
Judge Gambler, declaring that the
Judge had not exceeded his discretion.
He stated that the fainting and hys-
tericai conduct Of the prisoner un-
doubtedly affected the jury and argued
that Judge Gambler did perfectly right
In ordering a mistrial.
The solicitor argued that, even had
the supplemental order not been
passed, the original order contained
sufficient grounds for granting mis-
trial. He concluded by stating that In
his opinion the defense was pursuing
the wrong course; that they should
have applied to the trial judge for the
writ, or entered a plea Of former Jeop-
ardy at the next trial.