The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1906-01-26
AUSTIN JOHNSON
GETS NEW TRIAL
Supreme Court OF Appeals Hands
Down Interesting Opinion in
His Case.
MECHANICS LIEN DECISION
Norfolk Tax Case Decided in
Favor of the City OF
Norfolk.
MECHANICS LIEN DECISION

The most important opinion handed
down by the Supreme Court of Appeals
on yesterday was in johnson VS.. the Com
monwealth from tho Circuit Court OF
3lenrico county, when, Judge Whitue de-
lvering the opinion, a new trial was
granted Austin Johnson, the negro now in
Hcnrico County jail, sentenced to be
hung for criminal assault upon little ten
year old Ruth Pinchbeck, on the evening
OF May g. 1905.
The particulars of the crime of which
Austin johnson was convicted are too
familiar TO need repetition. Upon the
first assignment OF error. that the lower
court should have set aside the verdict
as contrary to the law and the evidence,
1t is stated that, conforming TO the re-
qulrements of the rule and statute in
cases where the evidence is certifid by
the lower court, that the evidence must
he considered as on demurrer the court
is constrained TO sustain the action OF
the lower court in this respect.
But it " stated, that the curt is pain
fully conscious of the unsatisfactory
state of proof with regard to the identifi-
cation of the prisoner as the perpetrator
of the atrocious crime of which he stands
convicted.
Was Not Identified.
The opinion then goes into a statement
OF the facts relating to the arrest and
Identification of Johnson by the victim;
81 appearing that when he was first taken
into her presence she was twice asked If
he was the guilty party. and each time
indicated by Il shake of her head that he
was not: that thereupon the officers took
the prisoner to the home of little negro
=, y1hh a,, ,Na,,
her assailant 1ured her away, and the
negro girl, on being Intercepted as 10
whether he was the man. replied, mo.
that is not the man: that Is Austin John
SON The mal who met US this evening
was a tall, black man" etc, etc., and II
was also shown that Johnson Was well
known to this negro girl. having been
formerly in the employment of her faith
or. After hearing the negro girls state
.nents the officers released Johnson. The
child having said she was frightened
when johnson was taken before her and
That she wanted 10 see him again. and
believed that he was the man who as
saulted her: he on the following morning
was found by two detectives, who had
set out to arrest him. in a shanty at a
brickyard In the vicinity, where he was
accustomed 70 stay at night with n
friend. One of the detectives testified
that while his companion had gone to the
house of the owner of the backyard to
telephone for the patrol wagon. the ac-
oused man got up from the bunk where
he was lying. went TO the fireplace and
kindled fire; TINT he then went to the
corner of the room, pulled down some
cloth from the loft above, put it in the
fire and burned 1t. The tendency OF this
evidence was TO show that the prisoner
burned some OF the garments 10 destroy
evidences of the crime and burnt pieces
OF cloth Were produced at the trial. which
the detective claimed to have gotten from
The fireplace, and identified by an expert
as portions of underwear
The evidence discovered after the trinl
referred to in the opinion of the court
is contained In the affldavits of the man
aging overseer of the brickyard VIII,
states that he went with the dctectiv,
10 the shanty, where Johnson was, O.
The day referred to. and that there wa,
no fire of any kind in the shanty, and n,
signs of any fire having been there; tina
nothing was said by the detective abou
the burning of the bundle of underwear
and that on the next day, when he apai,
went with them TO the shanty, they tool
from a small accumulation OF old asha
IN the fireplace something which resem
bled piece Of burnt ribbon, and whicl
they said vas a piece of neclStIe. an,
hat was all they took from the fire
place.
The court is Of opinion that the In
furious Impression that must have bee
wrought upon the minds, of the jury b
the uncontradicted testimony OF the de
tertive can hardly he oyerestimated.
Not Legally Dead.
IN the case of selden,s executor V,
hfnnedy. from the Court of Law an
Cbancery of the city of Norfolk. Jude
Buchanan delivering. the opinion, ii
court held that a person cannot be d,
clared legally dead and letters OF ADM,
lstration granted upon his estate aft,
he has for seven. years absented hlmse
from the state, as such action would ,
IN violation OF the fourteenth amen,
,nent TO the Constitution OF the Unit,
: slates. which prohibits The depriving
,lpy person OF life. liberty or proper
Without due process of Law,
In this case pr William Sedden b
surathfd TO Charles III Kennedy $40