The Savannah morning news. (Savannah, Ga.) 1900-current, 1903-07-29
IN FORMER JEOPARDY
COUNSEL DECLARES OLIVEROs
CANNOT BE TRIED AGAIN.
COURT GRANTED MISTRIAL
BECAUSE OF IMPROPER REMARK
IN JURY's PRESENCE.

They Maintain That in Ordering
MistriaI over Their Objections tn
Court Deprived Their Client Ot
the Right to Establish His limo
cence-SOIicitOr General and Court
Hold Different View of the Case.
They Say Another Trial Is the
Proper PrOcedure-Lawyers De-
clare 1t a Pretty Point.
The declaring of a new trial in the
Oliveros case by Judge Barrow in the
Superior Court yesterday, because of
an improper remark which he made in
the presence of the trial jury presents
an unusual condition of affairs. The
counsel for Oliveros declare that their
client cannot be tried again since he
has already been placed in jeopardy
of his liberty; the solicitor general and
the court maintain that another trial
is the proper procedure. while several
well-known lawyers, while non-com-
initial, declare that the point raised is
a nice one.
The position of the court, together
with the matters which led up to the
declaration of a mistrial, are outlined
in Judge Barrow's remarks to the jury
when court convened. He said:
Grounds for MistriaI.
During the progress OF the trial of
the case of state VS.. John B. Oliveros,
yesterday the state rendered in evil
dence receipt given to the Southern
Express Company by the defendant
acknowledging the reception of pack
ages Of money which were specified in
nature to the receipt of the defendant,
John B. 0liveros, as his own genuine
signature, by a witness who testified
that he knows his signature. The de-
tense objected to the introduction of
the testimony, one of the grounds of
objection being that there was better
evidence of the fact that the defendant
has received the money than the re-
ceipt; that it was not the highest and
best evidence. The court overruled
Alle ODJttllOI anu dNlililAtu thC iCNCAPNS
and used this remark in so ruling:
"A receipt showing the delivery of a
package is about as high evidence as
you can get
1t is about as high evidence as
one can get that a man has received
anything when he acknowledges it in
writing.
cited Potter Case.
Il am of the opinion that the ruling
of the Supreme Court, in the case of
state VS.. w. ]. Potter as to a remark
that was made by this court to wit
ness with regard to his testimony,
covers this. / think it was a revers-
ible error for the court to make that
remark in the presence of the jury
with regard TO that receipt for the
reason that it gave to the receipt all
the force and emphasis that the opin-
ion of the court could give as to the
character and weight of that evil
dence."
In pursuance to the remarks the
court then passed the following order;
THE court being of the opinion that
the remark made by the court when
the defendant objected to the introduce
ton of a receipt signed by the defend
ant, was improper and calculated Sc
riously to prejudice the rights of the
defendant, and operate to his injury,
said remark being an expression of the
opinion of the court upon the weight
to be given to a particular piece of
evidence introduced by the state, and
that the ends of justice will be sub
by a prompt correction by the
court; it is considered, ordered and i'd
judged that Juror Thomas H. Hen
derson be and he is hereby withdrawn
and mistrfal declared in said case"
Mr.. OHiverOs DispIeased. ~.
The counsel for the defense objected
to the declaration of a mistrial on the
grounds that it deprived their client
of his right to establish his innocence
while in jeopardy.
Mr.. Oliveros said after the trial that
he was sorry that it had terminated
as it had.
This turn of affairs was entirely I'M
expected" he said, land 1t is equally
my counsel that l cannot be tried
again, and 1 am, therefore left in an
unenviable position in the eyes of The
public. l am convinced that l could
have established my innocence, hut If
am not tried the approbrium under
which l have lived will not be re-
moved"
Says Court Was Right.
There is no doubt in the mind of
the solicitor general but that the case
will be tried again in the fall. The
course pursued by the court he says
was proper and justified by recent de-
cisions. One of these decisions is in
an Augusta case. where on the trial
of a murder case the wife of the muir
dered man. who was present in court,
screamed and tainted during the prog
ress of the trial. A motion for a mis-
trial was asked and refused. The
higher court held that since the act
was calculated to prejudice the minds
of the Jury the court erred in refus-
ing to grant a new trial
Judge Barrow himself cites the Pot
ter case, in which he was overruled
for similar remark to a witness. The
court merely expressed an opinion
which was calculated, through not de-
signed, to lend weight to the position
assumed by the state. 1t was his opin-
ion, and unwittingly he expressed it.
Recognizing his wrong, he made i'm
mediate reparation by declaring mis-
Nw-fr