Clearfield Republican. [volume] (Clearfield, Pa.) 1851-1937, 1860-11-21

one of that character. AZ n.
4. During the progress Of the trial, and after
the evidence and argument had closed, the tip ,
slaves in ohssge Of -the jury, both Of whom were
from the region where the transaction occurred,
and one Of whom was awitness ON the part Of tn
Commonwealth, mixed and conversed with the
jurors. '-ls7 I' 1.lstrs7 srd g. q, o. sl+ fsf
We cannot discover from the evidence any mis-
conduct on the part Of the, tip-staves or jurors,
such as would warrant the granting Of new trial
nor is there in our opinion anything in the evil
dencs to support the next reason ass igned, viz:
s. While the cause was progressing, during the
tinteryels between the sessions of the Court, the
jurors were accessible to outside influences, and
persons actually entered their room. 4
i 9. While the jurors were celebrating upon
their verdict, one of the dp-staves present in
the room. s ..f
The testimony of Mr.. PaOlhamus fully explains
how this occurred, and fail to see in tho trans
action any thing that calls for the granting of u
new trial. He merely entered the outside door,
assembled the stairway, looked into the upper room
occupied by the jury, and asked for the buffalo
robes which were needed by the owner Of the
building, and who requested the tp-stave to pro-
occur to the prisoner from this nor do we find
rule Of law under which verdict rendered under
such circumstan would be set aside
! Z. Because of errors in the Court, and improper
influences on the jury.
Upon this general reason it is unnecessary to
make any comment; and hence we will pass to
the consideration of the eighth and last reason
assigned as follows:
s. Because the defendant is convicted Of 4
higher crime of murder than he can be guilty Of
under the testimony, and has. since the trial. dis
covered evidence to prove tnat his mind was in
capable of premeditation by reason of intoxica-
| tivn. .' GOO
Thi, proposition has been pressed upon us with
great real and earnestness, and calls for close
and careful examination. The first branch of it
has been answered by our remarks upon the first
reason assigned, and the latter clause asserts as
a reason assigned for sw trial, the discovery
of material evidence since the rendition of the
verdict. Mr.. Wharton, in his admirable treatise
on American Criminal Law, at page 1880, says:
"a party who seeks for a new trial on the
ground of newly discovered evidence is chargable
with laches, il previous TO the trial he knew that
the Witness whose testimony he seeks to intro
duce as newly disc jvered, must probably, from
his continuation and employment at the time of
the transaction, the subject of controversy, be
conversant with the facts in relation to the trans
action, and especially where, previous to the trial
the party knew the wituess himself testifes to,
what the witness could prove, although at the
time of the trial, and while preparing therefor,
the party had forgotten the fats"
Now apply this rule to the case in hand. The
prisoner, by his couns, l. alleges that he can now
prove by several witnesses that ho was inoxi-
Gated at the time the act was contaminated. Civ
ing to the prisoner tho full benefit of this cxcep-
tOn, we may not shut our eyes to the fact that
from the testimony of these witnesses, the pris.
oner must have know at the trial. and while he
was preparing for trial, that those witnesses were
cognirant of the facts which he desires to prove
by them Thoy were present with him. saw hin
drink and 6ll his bottle, and the prisoner dranl
t1ice at the house of Mr.. Shof, and several time
with John Gregory, Now, when we consider tha
this all occurred on the day en- which Mrs. Cath
cart met her death, and but q few weeks befor
the trial, and apply to it the rule of law we have
just quoted, can this testimony, with any degro,
u of propriety, be called CATER. discovered iesti
y mony" No effort was made to procure the at
tendance of these witnesses, and the persons VIII
: were sworn as witnesses upon the trial, and wh
were present and saw the prisoner and converse
with him, or heard him converse with othe rs, i'm
II mediatey or soon after the act was done, wer
not INTERCEPTED ms to his condition at the time
whether ntoxicated or sober. Thomas Cathcar
testified that he was there when the gun went of
Nancy Cathcart swears that she was there fey
y minutes after; and other witnesses, who came il
: during the evening, would most probably hav
been able to state the condition of the prisoner
but the question was not asked of any of them
SO far as we remember. except DIR. Fetzer, VIII
says that not having known tho prisoner previ
= ously, he could not say whether he intoxicated
= or not But the counsel of the prisoner asser
that, although the testimony might or shoul,
have been known to the prisoner at the trial, YET
through ignorance forg otfulness, be failed t
communicate it to them. This, as will be see
> by the rule already quoted. is no ground for ask
irg new trial. We are clearly of opinion tha
Q the prisoner has not brought his case within tn
9 rules in regard to aftsr-discovercd evidence os
the contrary, we are constrained to say that i
a the rules of law are observed, this cannot upo
a tiny principle be called newly discovered evi
dence
Il Again VIC are asked TO consider, in decidin
n this motion, that great deal Of public prejudic
and much excl itement prevailed at the time {
ho trial, aud that the prisoner has consequent
" been denied the benefits of fair and impartil
81 trial. We are not mate aware of such state Q
feeling, other than by the assertions of counse
l. IL we except the rumors that are ahoat as to tn
e feeling in the neighborhood. The jurors, upo
y being called, WERE at the request of the prison
lie ers counsel, put upon their roir dire, and yer
,s few Of them were found to have formed or ex
rs pressed any opinion in reference to the guilt
o, innocence Of the prisoner But admitting tn
Of fact to DO SO, we cannot see that II affords an