, 1858-01-08

to discredit the witness Rabbeson, but It
was unsuccessful. 1t is well settled as a
rule Of law that in all cases the jurors are
Judges Of the facts, and emphatically so in
criminal cases and unless the evidence
greatly preponderates against the verdict
in criminal cases, courts are exceedingly
cautious in interfering with the verdict Of a
jury. In this case the prisoner has already
had the benefit Of review Of the evidence
by the Judge who tried the case below
who had not only the evidence before him,
but who had an opportunity Of observing
the department Of the witnesses on the
stand.
We are Of the opinion that there is no
such preponderance Of evidence against
this verdict as would warrant us in inter
fering.
But it is claimed new trial should have
been granted on the ground Of newly dis
covered evidence, and which he could not
have discovered with reasonable diligence
and produced at the trial The counsel in
this case, on the first trial had every oppor-
tunity to determine the relevancy Of the
testimony against the prisoner aud as the
fact which they wish to establish was not
exclusively within the knowledge of the
witness whose testimony they desire, but
might have been shown by others in the
neighborhood, we incline to doubt whether
there has been the exercise of that reason
able diligence which should be regarded
There is however another view Of this
which supercedes the necessity Of determin-
ing the point
1t is laid down as rule Of law that
when the motion for a new trial is consid-
cred, the court must Judge not only of the
competency, but Of the effect Of evidence
II, with the newly discovered evidence be-
fore them, the jury ought not to come to
the same conclusion, then q new trial may
be granted, d,-otherwise they are bound to
refuse the application. In the case of
Lewelen VS.. Parker, Harrison's Ohio
r. 5, Ludlow VS.. Parker, Hammond 5,
it is ruled that in considering the motion,
the court will not inquire whether taking
the newly discovered testimony in connex-
ion with that exhibited on the trial, jury
might be induced to give q different ver-
dict, but whether the legitimate effect Of
such evidence would require different
verdict. In the case of Martin VS.. Mar
vim, D. @. Phi. 9th, Leg. Int. 2, it was
ruled in the same way. We are satisfied,
from an examination Of the affidavit on
which this application was grounded, that
should q new trial be granted by this
court, the legitimate effect of the whole
evidence would not require q jury to fnd a
different verdict.
1t is alledged that the court erred in
failing to charge the jury that they could
find the prisoner guilty Of an offence less
than that Of murder in the first degree.
There is nothing in the record going to-
show what the charge was.
But il Is said the court erred in remark
ing to the jury after the argument Of coun.
sell" That they had heard the arguments
of counsel and charge Of the court, and
that the closing counsel had in some de-
gree gone outside the case,-that all the
Jury had to decide upon was the evidence
given upon the trial the law they were
to take from the court" We see nothing
improper here. 1t is always the duty Of
the court TO restrain counsel and keep them
within proper limits.
II is alleged that it does not sufficiently
appear by the record that the defendant
was presenG at the trial when the verdict
was rendered nor yet when sentence Of
death was passed. 1t appears from the
record that the jury, naming them, on
their oalhs, do say" We, the jury, find
the defendant, Leschi, guilty as charged in
the indictment, and that he suffer death, /"
and thereupon defendant gives notice for q
motion for new trial. The sentence, as
stated in the record, "and the defendant
saying nothing why Judgment should not
be pronounced against him /; it is consid-
cred by the court now here that the defend
ant be taken to Steilacoom, in Pierce
county, on Wednesday the tenth day Of
June, in the year 1857, and there, on said
day, between the hours Of 10 o'clock in the
forenoon and four o'clock in the afternoon,
be hung by the neck until he be dead"
We think il sufficiently appears that the
defendant was not only present when the
verdict was rendered against him, but that
he was present when the sentence was pro-
nounced.
We are therefore Of tho opinion that the
Judgment 10 the case should be affirmed.
TerrifOrial IAgiSlafure-Vth Session.