Year: 1859

Nhltney stated that the counsel for the defence had
hled an additional affidavit this morning in the case
OF the State Us. Duvall, in the motion for new
trial; he had also filed two counter -afiidavits-
neither, however, were of much Importance to the
ISSUE The State was now ready to proceed with
the argument.


Mr.. Leakin here came into Court and asl,od tho
Judge to issue a bench-warrant for the arrest of
one James Hyson, who had threatened the life of
a Mrs: durham, witness for the defence in the
case OF the State Us. johnson, tried last week for
an an assault with intent to kill Hyson, on which
charge the traverser acquitted. Mr. Leakin
SAID that ever since the trial Hyson had abused and
threatened the witness to such an extent that She
now asked the protection of the Court.


Judge Stump said if the woman would swear to
these facts, he would put Hyson under security to
keep the peace towards her.


Mr. Leakin hoped the Court would see that good
security was given. e0ON


Judge Stump.-"Oh, yes; Tll attend to that"


Mrs. Durham then took the requisite oath. and
the Court ordered bench-warrant to be issued for
the arrest of Hyson.


MIR. Kenly, counsel for Henry Duvall, then arose
ana commenced the argument on the motion for
new trial in his case


Mr. kenly began by saying that the first ground
which he would argue-and he had objected to this
on the commencement of the trial-was that the
panel oil jurors, which was arrayed to try the prso
her' % was 0,n incompetent He then referred to the
Act OF 1873, ch.' 81, defining the duties of the
Sheriff OF Baltimore City and County, in summon
ing petit jurors. He eontended that the Jurors.
empanelled in this case;swere not competent, be-
cause they had served out the first three weeks of
the term. He argued that the three weeks aid not
apply to twenty-one working days, as contended by
the State, but that the term was to be counted by
weeKs, and sunday0 TO be included in the count.
BY the ruling OF the Court, he contended that the
prisoner had been denied his right of challenge.


Mr.. kenly then referred to the first reason, in
the motion, which was that the verdict was against
law After the case had been submitted to the jury,
they sent note to the Judge askinp to
be instructed upon certain points of law; among
other matters they desired to know what constituted
an illegal and forcible entry. He contended that
the jury, in making this inquiry, had doubts in
their minds, from the evidence elected whether
there had been any illegal and forciby entry. The
fact that the jury were instructed by the Court as
to what constituted murder in the first and second
degree, but got no instructions in relation to what
the law calls forcble entry and having still that
doubt upon their minds they made up their verdict
without giving the prisoner the benefit of that doubt
which was against the law Mr. Kenly then argued
that tn verdict was against the evidence; that the
evidence did not justify verdict of murder in the
nrst degree He then referred to the act of 1909
defining the grades of murder, and contended that
there was no evidence in the cause to show that this
was premeditated killing, with malice, which
would constitute murder in the first degree as de-
fined by the act.


Mr.. keny then referred to the action of the
Court In sending note to the jury in reply to one
sent by them to the Judge upon the night thew
were delloeratlng upon their verdict; and with all
NeS oSiSi chSC W tue COuIt COntenQeG that 1t
an irregular proceeding and an improper inter
terence with the jury. 1t was a proceeding
against law and had an influence upon the minds of
the jury because when they desired to be instruct
ed upon the law, and received reply from the
Judge, that when they came into Court in the
morning they would get the opinion of the Court
they ceased their deliberations and waited until
morning for this opinion, whereas if they had not
received this note, they would have continued to
deliberate and probably made up their verdict that
night. Mr.. kenly then cited several cases to show
that this was against law, that no communication
should be had between the Court and the iurv
after the jury had retired to deliberate either bv
note or otherwise, except in open Court and in the
presence or the prisoner and cited case in 1st
PICKERING where this principle is laid down. Mr.
henly then argued that the verdict in the case was
against the weight of evidence, and went into an
analysis OF all the testimony in the case contending
that there was nothing in it to show that Duyafl
nred the shot or that he went to the house for the
purpose OF perpetratlng any act of violence, and
therefore the verdict was against the evidence


Mr. henly then referred to the new testimony
which had been discovered since the trial of the
case, which testimony would establish the fact that
Duyall was not present when the shot was fired,
ana winch was most material to the safety of the
life and liberty of the prisoner.


Mr.. Whitney then arose and addressed the Court
against the motions filed.


He said that there had been two motions filed


In this case the first in arrest of Judgment and
the second for a new trial.


Mr. kenly here remarked that the motion for y nav
trial had only been taken up by him; the Court had
granted, as he understood, that one motion could
be argued after the other had been decided by the
Court.


Mr.. Whitney did not so understand If and
thought the counsel for the motions was arguing
both at the same time.


The Court was of opinion that both motions
were TO be argued at the same tine; that was the
decision of the Court the time tlI. counsel not-
he'd the Court of his intention to file the mo-
tions.


Mr.. Whitney continued and said that both mo-
tlons involved the same questions, and he would
confne his remarks to the reasons assigned in the
motions for a new trial.


lie then referred to the argument advanced by
the counsel on the other side that the Jurors en-
paneled We're incompetent to try the cause by
reason OF their having served the three weeks as
provided for by the act of 1879 He called the at
tenton OF the Court to the act of 1853 relative to
the duty OF jurors summoned to serve in Baltimore
city; chapter ia of this repeas all acts previ
ously passed inconsistent with its provisions This
act does not limit the time for which such parties
are to serve as jurors, and therefore he contended
that the time not being limited the Jurors were com
petent. Mr.. Whitney then referred to one of the
reasons advanced in the motion for new trial,
that the verdict was contrary to the law In re-
gard to the argument advanced on the other side
that the jury found a verdict against the law and
directly against the opinion of the Court as given
to them, he contended that the jury had the right
to disregard the opinion of the Court in finding
a verdict. In support of this argument he read
from Archibald's Criminal Practice, page l7s, and
also cited the cases of the State as. Snow, Is
Maine reports p 346 State Us. Jones, 5th Ala
bama reports, p. 666, and also Warren as State.
Attn Blackburn, where the same law was held in In
diana


Mr.. Whitney then referred to another reason
IN the motion for new trial, that the verdict was
against the evidence He read from the books to
show that the power of the Courts to grant new
trials when the verdict is against the evidence
should not be exercised, except in very clear cases
and also that trials shall not be granted for the
purpose OF impeaching the testimony of witnesses,
as the defence had attempted to do by filing the af
hdavits of some of the jurors of the Coroner's in
guest and OF other persons. He referred to the af
hdavit of Philip Warehem, in which he saws he
did not see Duvall at the house; but in which he
does does not say that Duvall was not there. He con-
tended that this affidavit only accumulative evi-
dence, and was not ground for new trial. More
over, there is no allegation in the affidavit that due
diligence was exercised in procuring this testi-
mony. AS to the affidavit of Duvall, in which it is
alleged that one John White will be able to prove
that the prisoner not present the house when
the shot was fired, this also he submitted was only
accumulative evidence; if the prisoner had been
aware OF TINS evidence before the beginning of the
trial, his affidavit would have been cause for post
ponement of the case, but not for a new trial
Again. this affidavit is not the affidavit of White as
to what he can prove, but it is merely the affidavit
of the prisoner and cannot be admitted here as the
basis of an action for motion for new trial


In reference to the action of the Court in sending
note to the jury which the counsel had called an
improper interference with the jury, and in sup
port of which the counsel had cited case from
Pickering, in which Judge Parker had given a de-
clsion In favor of new trial, he contended was a
case vitality different from the one at bar. There the
jury sent note to the Judge, informing him of
their inability to agree, and the Judge proceeded
to give them instructions by which the jury would
be able to deliberate in a more systematic manner


In this case the Court here declined to give theury
any opinion, as it might be construed into an undue
interference with the jury, and told them to come
into Court, and ask the opinion of the Court in a
proper manner. Mr.. Whitney then submitted the
matter to the Judgment of the Court


Mr.. Whitney filed yesterday two counter affida-
wits IN the case OF the State Henry Duvall,
tOn for new trial.


The first is the affidavit of Bernard L. Harig one
of the jurors at the inquest the body of Chris
tian Fischer, in which he deposes that Elizabeth
Fischer did testify there that she would know the
man that fired shot in her house, by which her
brother-in-law killed, if she was to see him
again. LSworn before JNo. SHowACRE, J. p.


The second is the affidavit of James Hodges
juror at the same inquest, in which he deposes to
the same facts those set forth in the affidavit of
Mr. Harig.


Mr.. Whitney was followed by Mr.. Bond, assistant
counsel TOR the prisoner, who in very able man
ner argued the points in the matter at issue re-
viewing the authorities brought forward by the
States Attorney, and contending that his client
was entitled to a new trial for the reasons as set
forth in the motions for trial and in arrest of
Judgment. AT the conclusion of Mr.. Bonds argu-
men, the Judge said he would deliver his opinion at
10 O'Clock this morning, until which time the Court



CoURT OF COMMON PLEAs.-Hon. William l.. Mar
shall, Judge. The Court was engaged in the fol-
lowing business yesterday:


William Grange rs Hugh Geston An oppeal