Smyrna times., 1913-06-11
CHAS, B. NAYLOR, TOWNSEND
is GRANTED A NEW TRIAL
AFFIDAVIT OF HIS DECEASED
BROTHER TO BE AS EVIDENCE
Court Denied States Motion to Set
Aside Retrial Order and Case Goes
Over Until Next Term of Court.

In the Court of Oyer and Terminer
Wednesday in Wilmington, Deputy
AttOrney-General ChaytOr filed a mo-
tiOn that the court set aside the or
der granting a new trial to Charles
B. Naylor, of Townsend. He gave as
his grounds the fact that George Nay
Tor, brother of the accused man, and
for whose testimony the court grant
ed the new trail on the grounds Of
newly discovered evidence, had died
on May IT, 1913. With his motion
he offered an affidavit as to MAYORS
death. Daniel o. Hastings, attorney
for Charles B. Naylor, the defendant,
objected to the filing of the affidavit
on the ground that this motion was
for nothing more than a rehearing on
the defendants motion for a new
trial and that there is a time Init for
the filing of an affidavit of rebuttal
He declared that the State had no
right 20 bring in affidavit for rebuttal
after the time for doing so had ex-
pired. Acknowledgement WOlcott
replied that the States motion was a
separate and distinct motion and that
the affidavit was in support Of the
motion now made and not in a rebut-
tai to affidavits previously filed by
the defendant He declared that if
the motion were not followed with
the affidavit which must necessarily
support il, the whole thing was de-
cided on a technicality. Mr.. Hast
ings then said that justice and right
demanded that the affidavit made by
George Naylor before his death should
be allowed to the defendant, and that
it was not right that the State should
be able to choke off MAYORS chance
by thus shutting off his evidence.
Court overrules Hastings Objections.
After a few moments of consultation
Judge Pennewill announced that the
motion was not for a rehearing but
was an application for the vacation of
an order Of the court. He further
declared that the affidavit vas in sup
port of the motion and that the court
overrules Mr.. Hastings objection to
the filing of the affidavit. In his
argument Mr.. ChaytOr declared that
the only reason the court granted a
new trial was in order that Naylor
might have the benefit of his broth
er's testimony in his case. and that
with his brothers. death the only
reason for granting the new trial
was removed. He further said.
in reply to Mr.. Hastings contention.
that there is difference between
civil and criminal cases in the vaea-
tiOn of an order. that no such differ
enee exists and that the court can set
aside an order for retrial in a Grim
inal case as we'll as in a civil case.
Mr.. Hastings made HIS argument on
two points; first, that a motion Il
change an order is never granted ex-
cept when the court feels that al
the time when the order was granted
the court erred and second, that il
: criminal cases a motion for new tria
is absolutely final and cannot be Sc
aide. He declared that in a crimins
case where a court had set aside tn
verdict Of a jury they could not con
, vict the rnan without the sentence o
jury. If they had just set asid
] a verdict, the court could not give
e new life, said Mr.. Hastings, withou
the decision of a jury given throug
: a trial. He further declared that
+ court cannot set aside its order {
: judgment unless it is shown to Ii
n court by those making application
n have set aside that the court erred I
y the time the order or judgment W.
Ie made.