And thereafter on the 13th day of September, A. D. 1911, a Motion for New Trial was filed in the District Court of Woodward County, State of Oklahoma, which Motion in words and figures is as follows, to-wit:
State of Oklahoma, Plaintiff
vs. -- Case No. 714 Woodward Co., OK
N. L. Miller, Defendant
Now comes the defendant, N. L. Miller, and moves the court to vacate, annul, set aside and hold for naught the alleged and pretended verdict of the jury heretofore returned by the jury and filed in said cause on the 12th day of September 1911 and grant said defendant a new trial and the re-examination of the issues in said cause for the following causes and reasons which affect materially the substantial rights of said defendant and by which said verdict the substantial rights fo said defendant have been prejudiced in this, to-wit:
First-----Because the court erred in over-ruling the demurrer of said defendant, N. L. Miller, to the information now on file in said cause against said defendant, and upon which said information said defendant was placed upon trial.
Second-----Because the jury received evidence out of court, other than that resulting from a view of the premises.
Third-----Because the Court mis-directed the jury in matters of law upon the trial of said cause, and during the course of said trial, which rulings of the Court were excepted to by the defendant at the time.
Fourth----Because the Court erred in the decision of questions of law arising during the course of the trial of said cause, which were excepted to by the defendant at the time.
Fifth-----Because the Court erred in refusing to grant the motion of defendant to strike out the testimony of Edwin DeBarr, which ruling of the Court was excepted to by defendant at the time.
Sixth-----Because the court erred in refusing to grant the motion of said defendant to strike out the evidence of Dr. G. N. Bilby as more fully shown in said motion, and for the reasons therein stated, to which ruling of the Court the defendant at the time excepted and saves an exception.
Seventh----Because the Court erred in refusing to grant the motion of said defendant to strike out the testimony of Dr. Grantham as more fully appears from said motion and for the reasons stated on said motion, to which ruling of the Court the defendant excepted and saves an exception.
Eighth-----Because the Court erred in refusing to strike out and in not instructing the jury not to consider the testimony of Dr. Templeton for the reasons stated in said motion, and to which ruling of the Court the defendant excepted and saves an exception.
Ninth-----Because the Court erred in not instructing the jury not to consider the testimony of W. M. Bickel as to the conversation between he and Miller relative to Miller's knowledge of medicine, to which ruling of the Court the defendant at the time excepted and saves and exception.
Tenth-----Because the Court erred in admitting over the objection of defendant, incompetent evidence calculated and intended to prejudice and inflame the minds of the jury against said defendant, to which ruling of the Court the defendant at the time Excepted at the time.
Eleventh----Because the Court erred in admitting over the objection of defendant, immaterial evidence, which was excepted to by the defendant at the time.
Twelveth----Because the Court erred in admitting over the objection of the defendant irrelevant evidence, to which ruling of the Court the defendant at the time excepted and saves an exception.
Thirteenth-----Because the Court erred in refusing to sustain the demurrer of the defendant to the evidence offered by the State and to which ruling of the Court the defendant at the time excepted and saves an exception.
Fourteenth-----Because the Court erred in refusing to incorporate in his charge to the jury special instruction number "E" requested by the defendant, and to which refusal the defendant at the time excepted and saves an exception.
Fifteenth-----Because the Court erred in refusing to incorporate in his charge to the jury, special instruction number "G" requested by the defendant, and to which refusal the defendant at the time excepted and saves an exception.
Sixteenth-----Because the Court erred in refusing to incorporate in his charge to the jury, instruction number "H" requested by the defendant, and to which refusal of the Court the defendant at the time excepted and saves an exception.
Seventeenth-----Because the court erred in refusing to incorporate in his charge to the jury, special instruction number "I" requested by the defendant, and to which refusal the defendant at the time excepted and saves an exception.
Eighteenth-----Because the court erred in refusing to incorporate in his charge to the jury, special instruction number "J" requested by the defendant, and to which refusal the defendant at the time excepted and saves an exception.
Nineteenth-----Because the court erred in refusing to incorporate in his charge to the jury, special instruction number "K" requested by the defendant, and to which refusal the defendant at the time excepted and saves an exception.
Twentieth-----Because the Court erred in giving instruction number one to the jury and especially the following portion of said instruction, to-wit:
"Homicide is murder in the following cases: 'When perpetrated without any design to effect death by a person engaged in the commision of any felony.'"
To which said instruction of the Court the defendant at the time excepted and saves an exception.
Twenty-first-----Because the Court erred in instructing the jury that they must fix the punishment of said defendant by death or imprisonment for life at hard labor, as more fully appears from instruction number 8, to which said instruction the defendant at the time excepted and saved an exception.
Twenty-second-----Because the Court erred in giving instruction number 11 to the jury, to which said instruction the defendant at the time excepted and saved an exception.
Twenty-third-----Because the Court erred in giving instruction number 12 to the jury, to which said instruction the defendant at the time excepted and saves an exception.
Twenty-fourth-----Because the Court erred in giving instruction number 15 to the jury, to which said ruling of the Court the defendant at the time excepted and saves an eception.
Twenty-fifth-----Because the Court erred in permitting Moman Pruiett of counsel for the State in his closing argument to the jury, to refer to the defendant as a murderer, scoundrel and villan, and by other scruplous and indecent names, and also erred in refusing to admonish said attorney not to impersonate the members of the jury by calling them by their names and illustrating cases between two of said jurors, calling them such names as Mr. Thompson, and George Welty and Mr. McGriff and Mr. Phillips, which said specific designation or impersonation of the members of said jurors was by the defendant objected to at the time, and the Court requested to admonish counsel not to refer to said jurors by name, which objection of counsel was by the Court overruled and to which ruling of the Court the defendant at the time excepted and saves an exception.
Twenty-sixth-----Because the verdict is contrary to law.
Wherefore premises considered defendant prays that the verdict of the jury hereto fore rendered in this cause on the 12th day of September 1911, may be in all things by the Court vacated, annulled, set aside and held for naught, and said defendant may be granted a new trial, and for such other and further relief as to the court may appear just and proper.
L. T. Wilson & Charles Swindall
Attorneys for defendant
Case #714
Woodward, Oklahoma
filed, Sept. 13, 1911.
Jerry Coover, District Clerk.
Now, to-wit: on this the 15th day of September, A.D. 1911, the same being one of the regular Judicial days of the Adjourned 1911 July Term of said District Court this cause came on in regular order to be heard by the court upon the Motion of Defendant, N. L. Miller for a New Trial and the State of Oklahoma being present by Sandor J. Vigg, County Attorney of Woods county, State of Oklahoma, and the Defendant being present in person and by Charles Swindall his attorney and the court having heard the argument of Counsel infavor of and against said Motion for a new Trial and being fully advised in the premises, both as to the law and the facts finds that said Motion for a new Trial is not well taken and should be overruled, to which said finding of the court the Defendant at the time excepted and saves an exception.
It is therefore considered, Ordered and adjudged by the court that said Motion for a New Trial be and the same is by the court overruled, denied and refused, to which said judgment, order and ruling of the court the defendant at the time excepted and saves an exception.
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