The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-04-25
TIE nARrUxG nCnDEa CASE.
Application for n Writ or l1rTor-POlnts or
tho Prisoner.
u.s,,. IN. Uor a WIGHT

Before tho Hon. W. Wright
Ehertly after ten o'clock Saturday morning ". J.
Bsdley, Eq, applied 70 Judge Wright Of albany, as
Bsncards Hote for writ Of and stay OF execution
IN she eass Of Mrs. Mary H,rsupg. Samuel G. Courtney,
District Attorney for Albany, present on the part OF
,Le prosecution.
B,h counsel came down from Albany yesterday morn
ing expressly 10 attend 70 this
The pIsonsrs counsel ss,d-rhis Ia app'icsaon for
the allowance Of wr Of for stay OF proceedings
In the Of Mary Haitung, who, as your Honor is
well aware has been tried and convicted Of the crime OF
the allegation and charge being for murior OF
ber nutbsDdsDd sen,eno Ell 10 die co Wednesday next
Un snail appear enongb In the bn OF exceptions
eigned aud feaed she must then die upon
the fcs1nd--ae both Temporarily aud Spiritually. The
pubic hat bad great hope hereOfNe @i executive elem
eDcy, bat there remains hope IN that quarter
n these not IeaaOns for granting me writ but vii
now submit ,htm.
POINTS APPLICATION MADE
l. The ststsmeD, maize by the psifo6er 70 snefG Bray
Ton mol voluns,y sistment, aoi shoaid have been
excluded. made 10 be Sheriff OF the county, aud
after she baa en arrested, sod white che vas 10 ousto
dy. That tbe was laboiDg under influence OF fear s MI
est fTtm the inquiry she put to the Sheriff. "Wna 90
you think they viii DO With mef" II sac clearly made
,he IL nUepce Of the Strongest emotions which
sgtste the human breasi-bope and fe4r-ADd being
pade should bev been excluded (People McM ,hou,
ION YR 8s4) TIE ground upon which .t4temen.s or
excluded when made alter arreet that
fIom the agitation Of mind which the party charged IL
supposed % be, he Ia liable 70 be influenced by hope or
u
that the defendant was ~ the time under the influence Of
both tuese emotions.
O. The Court erred 10 permitting the letter said to have
written by the prisoner be read evidence,
there sucient evidence OF her nand writing
re authorize witness express opinion sto the hand
writing Of another party the witness must be able TO state
that the party's handwriting aod from that
know ledge able 10 form opinion thinks toe
paper s in the handwriting Of the party sought to be
charged by It, The only witness who spoke OF the prison
er's handwriting rs the wtness hrs Strict rnis witness
ignorant German woman aud IL 10 perfectly ear
that she bad knowledge Of defendants han1writng
sufficient enable her TO form opinion s hsr direct
and examipatiOn She could not identify any OF the
other papers handed her Ia the admitted handwriting
OF the is clear that she had not any such know
ledge as would quality her to express an opinion upon
that important question
g. The Court in permitting this question he put
TO the witness Professor Porter, "ln your opaion q
ply sician from mere post mortem nnaton Of the
exterior surface and Of the indications Of Inflammation
which he discovers, determine with any degree Of
ainty the precise period OF time when such Inflammation
caased In order TO appreciate the importance aud
bearing Of this question and the objection taken IT, s
necessary 70 refer 10 portions Of the evidence which pre-
ceded 1t. The post morem examination OF the deceased
bad been made by DR.. Jacob Reinhat The prosecution
had placed him on the stand expert person of
sufficient sk and scientific atanments TO be able form
and correct opinion He had testified 10 the ap
pearances be had discovered upon the post motem
ampston-to the presence and extent Of the in
Elimination, and to hs opinion that 10 produce in
aammation TO that extent the irritating matter must
bave been tsken into the stomach at least two months
before death; and that the esopbagus could have
became much iDfamed he found by the ain,ns-
This testimony opinion, correct, Of vital import
TO the prisoner II entirely relieved hor from the
crushing weight Of the inference TO be drawn from fact
that purchased only days before tho
death Of the deceased. And II tended very strongly
sustain the theory of the defence, which vas, that tho
poison administered by other person than
prkoper TO rebut tss they put the question Wit
ness, Professor Porter asking him for opuioo whether
a pbysician or, In other words Dr. RenhArt, could
his opinion, determine at what time that o nation
caused. We submt that this clearly an error
for which new trial should bo granted The question
in Qf witt thpr
expert could form All opinion, and this, say, was most
citsIly fact for the Jury 70 dc. a.,crm,ns.
tion, er any principle which would permit IT, That The
subject matter OF the inquiry WAS one about which
ieasor Porter bad bnsef formed aud ao we'd
bis opinion upon tnat very subject And ye, with
had be asked and permitted 70 exo,ess, bis opinion
as TO the ability or capacity Of physician TO form
an opinion from the same data from which he drew
his conclusions, and about which the two diff
fered The different professions OF thoee two experts
is worthy Of passing remark. Professor Porter was
skifu concede him 70 be in his department of sciense
That scebcc However, iDsrucis him merely sin those
operations By ~hion ..s s.S1o aisrGDs bodies is
DOES teach him anything about the structure Of the
frame the operation OF disease upon it, or the
rapdlty with which disease progresses Or the ienea Of
the commencement Of disease aad it's attaining
given crisis And yes he is permitted 10 express the
jury hs opinion not upon question of scepce but upon
quest on - Act, and that fact whether ply scian,
whols profession and business necessarily involved
1nore intimate knowledge tbaa he could have the SUBJ
ject could had the capacity or means 70 form OPT
mon upon the upon which he perm tied
express his ln order to illustrate my meaning,
suppose that in capital case the defence Of insanity should
be Dterpoeed. Two witnesses called, OF wnom
expresses the opinion that the defendant insane; tho
other equally Of the opinion that the defendant
Was heard Of that the witness might express
his opinion as TO the capacity of the othef witness
form onep Or suppose the inquiry to be TO the
eenuipeness of q party's handwriting or slgnaturs
(na Nltnp Wh ta n clark haQ apa0 ma parfv
write but once but swears that he knows his hand.
writing and believes the paper 70 De his genuine
signature. Another witness he has the party
write one hundred times and believes the paper for
gerry Will be tolerated for moment 10 put the lat
clerks with precise ccrau,y whsne1 ' saaa
ure is genuine from having seen the party write but
e And yet this is the precise question in prople
which was allowed to be put. 1t was clearly opinion
that sought II was opinion touching the ve
skin Of another witness. 1t must be conceded that the
general rule that the opinions Of witnesses are not ey
dence. To this rule however, there are some exceptions
On questions Of science and trade persons skill may
undoubtedly be permlttsdto express opinion mat
ers belonging TO their particular science art but this
question did not call for any opinion on any m liter OF
science 1t asked for the opinion Of the
capacity OF another witness 10 form submit that
the jury we'll able to decide whether physician
could determine when Inflammation compenced from the
iacta beng stated upon which the wtoess might found
bis opinion, this witness could II Professor Porter
knew the extent Of the knowledge and skill OF medical
profession In general or Of Dr. Rhnehart, indivd.
ua he might state the facts constituting the evidence
the knowledge and skill, and from these facts the jury
could readily form judgment aud make tho necessary
comparisons. submit, then that the Court erred 10
ruling that this was q proper question Ia the case
Of the People vs.. Bodne, q Dsnio 2s,) the ex-
pressly held that In no case the opinion of
professional witness be asked, except IL be ono OF skI
scieDce The rule reiterated in tho case
OF Innour We Carlyle "A DEMO- 370) In the of L,u-
ming the State Church Wis, l7s) that 1t was held
the opinion OF experts only admissible touching
Questions their particular art science the case OF
woodin We the People u Parker, O 464), II was held
that the opinion OF ply scan upon question vov
ing medical skin or science not ole evidence
In the case OF Jefferson Insurance Co npany va CoteI n
WENDELL 49, II was held that persons skill are allowed
No give their opinions in evidence only n cas@ where,
from the pature Of tho subject facts dsconu from
such Opinions could not be presented Jury as to
enable them TO pass upon the question tue requisite
knowledge and Judgment. Is is submitted that the de-
pdaDt entitled " trial for the rreguiartes and
improper conduct of the jury. In procuring copy Of
the Revised Statutes and In examining for themselves
what the Law Of this 2. In holding a written
communication With The Judge without the knoW Wledge Of
the defendant and her counsel
Mr. Courtney, be Rstrcs Attorney sad-I appear here
by virtue Of notice sent ~ ma by tho counsel for the