Evening star. [volume] (Washington, D.C.) 1854-1972, 1912-10-14
Accused of Killing Twelve
Year-OId Harry Smith.
JURY PANEL EXHAUSTED
Additional Talesmen Are Sum-
moned to Appear Tomorrow.
NOVEL LAW POINT RAISED
Overriding by Court Allows Case to
Proceed-Prisoner Shows
Effects of Jail Life

\ novel proposition of law raised
nv counsel for the defense today at the
beginning of the trial of Tony Milano, an
Italian shoemaker on an Indictment
charging first degree murder. i'll connec-
ton with the death of Harry Smith,
twelve years old. The trial was. COM
menced before Justice Stafford i'm Crimi-
nal Court No. before an assemblage
that occupied every seat in the court
room Many waited in the corridors for
an opportunity To see the prisoner.
The regular panel of jurors was ex-
hausted today and additional talesmen
were summoned for tomorrow. More than
sixty witnesses have been summoned to
testify at the trial which is expected to
last throughout the week.
Raises Point of Law.
The point of law made by Attorney
Baker was that there is no provision of
law for the summoning of jury in a
capital case if the jury cannot be OBJ
tanned from the regular panel. Had the
court sustained the point the trial could
not have proceeded. United States At
States Attorney Hawken combated the
stand taken by counsel for the defense.
They urged that the court has inherent
power to summon talesmen To secure
iuries in criminal cases. They pointed
out that the exception. in the code in
any other than a criminal case means
that the courts power in such cases
is restricted so that Ii has not the OPP
ton of completing the jury out OF the
regular jury box or to direct the marshal
10 summon talesmen from the bystand-
ers
Justice Stafford in sustaining the view
of the government as to the law deelar-
ing that the code provides only for the
completion of the jury from talesmen
drawn from the box and does not at
tempt to prohibit the court frOS COM
letting by that means jury which cam
not be secured from the regular panel.
Provisions of Code.
at any time during the impaneling of a
jury in any other than capital case.
the regular panel by reason of challenge
or otherwise, shall be exhausted before
the jury . complete the court may. in
its discretion. direct the clerk to draw
from the box the names Of other per-
sons to serve as jurors and cause them
10 be summoned. or order the marshal
10 summon as many talesmen as may be
The crime for which MilanO is being
tried occurred thirteen months ago The
Italian had a shoe repair shop at 4t3 RI
street northwest. and September 10. 1911.
early in the morning. the building was
found on fire When the firemen arrived
they discovered the charred remains of a
boy. which We're later identified as those
of Harry Smith The claim is made that
M:lanO had attacked the boy with a
hammer some other instrument the
day before. causing the boys death That
he then set fire to the shop 10 hide his
crime is the allegation made by the
prosecution.
Prisoner Is Changed.
Thirteen months incarceration in the
District Jail has left its imprint on the
prisoner. His swarthy complexion at the
time of his arrest has given way to the
typical prison pallor. Milano. who is
of large physique and square shoulder
ed. formerly served in the Italian army,
and was known for his erect carriage
Today in the courtroom the shoulders
dropped. and no signs of military train
ing were apparent in the bearing of the
prisoner. Milano wears coal-black
moustache. wlkch ne constantly twisted
at the ends.
Miano gazed around the crowd in the
courtroom while counsel discussed ii legal
proposition with Justice Stafford at the
extended conversation with Attorney
James F. Kelly of counsel for the de-
Tense.
The wife of the prisoner with three
small children We're present in the court
room when the case was called for trial.
Dressed in deep mourning, Mrs. Matte
Smith. mother of the dead boy, and his
sister. Mae Smith. were among the wit
pesses present on the summons of the
government
Myrtle Smith. another sister. who at
tackled Milano at the mOrgue during the
inquest before the coronerS jury last
year. died about three months after the
homicide.
Alienists Are Present
Anticipating plea of insanity by the
defense. United States Attorney Wilson
had present in court this morning Dr..
f. NJ. BrusA. superintendent Of the Shep-
perd Pratt Hospital near Baltimore and
DIR. ID. Percy Kicking. visiting physician
to the Washington Asylum and Jail
These alienists are expected to watch the
actions OF the prisoner during the trial
and may he called to refutc any med
teal testimony offered by the defense to
show the prisoner 10 he of unsound mind.
The trial was delayed about thirty
minutes while counsel discussed at the