The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1877-02-23

April. ,Sn ,On
Q. Where did you go then? A. To Berks sche
county. man
Cross.examned--Wh cell did you put ,no" ,,a,e
Hester into A. On the left side as YOU scbe
enter the Jail. on the lower floor; Donohue thss'
was on tho r;ght frhoro uos,ou L. so.,> prom
~ -, =, N' 10 "0"I whic
D""y ""u ilyot were with Donohue; the add
door on the left would shut it was hard to and
shut thouoh. I was bere who, Do,oh,a cines
was tried aud wasn't witness. ''inr M
O. You didn't go on the standa A. No, cornt
sir; nor wasn't subpenaed, and | didn't Mont
,au ,ho lo,,,..., - a. Ill. -. dress
that ] heard such a conversation /
wasn't here when Duffy was tried knew
that Hester was indicted, and | arrested him
on suspicion for that murder Pu
Q. Why didn't you tell what you heard
to the officers of the commonwealth? A.. /
am willing to own up that didn't know it
wasmv place
40. When did You tell? A told my
m m't1er. but did. ~ want 10 be dragged IN.
to the affair, because / didut want these
peopie on ny frark, bu, meeting Col,nei
Cake in Phlaiep phia some ten days ago, he
told me that Hester was going to he tried
ior the murder OF Rea and wrote to Mr.
Conrad Shndel, of ramaqua. ''A'
q Why did you listen IL, the cell door .? y..c
a To fnd out what was going ON, and
iound ont what | just told, no more, no vcgel
les.
Q Didn't Von forget to tell this conver.
sa ion in 1868? A. never forgot it. yaa,,
E. r. keller sworp.-I was district at
torney of Columbia county in 1869 Lewis veset
| Parr the witaess who just left the stand
stopped me one day on the pavement near 'eae'
my office, while Hester was in Jail and wan. v.,
ted to tell me what he overheard Hester
and Donohue say; my recollection is that veset
took him in my Office and he stated to me
there, as nearly as can recollect. that he veset
| heard Pat. Hester say to Donohue that he
sorry Rea had been killed and that if he ''ae'
had il to do over again 1t never would be v.u.,
done and he said something about getting
any number of witnesses to swear them vcset
clear
@ Did PWr leave here before the time ''A''
for Hester's trial A. Yes, sir ; | knew that v.n.,
he left
Cross.examined by Colonel Freeze-I vege'
was district attorney when Donohue, Duffy,
and Pryor were tried and when Hester was ''Se'
discharged. v..
O. Did you tell your colleagues in the
case this story? A. think told Mr.. Barth. veaet
olomew.
G. When? Was it before the Donohue
trial? A. think it was, but cannot say yeuet
know was very busy at that time, and l
think noted down what the witness told vesetl
me.
Q. Have you your notes: A. looked for
them but can't End them. veae,,
Q. Did you call Parr at the Donohue or
Duffy trials A. No, sir. 'eHet'
Q. Did you move for the discharge of ye.e,,
Hester while knowing this fact A. did,
sir, with the consent and at the request of veseti
my colleagues think mentioned the
fact but once, and think decided that it Vesen
could only be used against Hester v.,,
On Friday morning Judge Elwell read his
opinion in regard TO the alleged incompetent v.seri
cy Of Daniel Kelly, as follows:
JUDGE ELwELL's OPINION.
Commonwealth vs. Hester ct. al Upon | TUX
Tsy the court 90 ps ope1s ed Ss counsel OF Veg
defendants to bring in the record of conyic- -
tion of the.wtness for robbery in Schu'ki co. A.
The exemplihed copy of the record is from ny
tv.l
1t shows that Dennis Kelly who is shown TO ahe 1n
be the witness, was indicted in the Court of d
Oyer and Termner Of Schuylkll county on !
the 9TH day of September, 1869, for highway
robbery, and that he was tried in the Court
of Quarter Sessions on the same day. found
guilty and sentenced to pay fine Of one a
hundred dollars and costs and undergo i'm
prsonment for two years in the Schuylkll
county prison. Il
The record itself is produced and appears ~
to be the docket OF the Quarter Sessions. Ii =
is testified by the clerk that there was an
Oyer and Terminer docket kept in that coun- =
ty, in which were entered homicide trials ~
also for burglary and the like. q
In the case of Dougherty vs. Com 40 p. sZ
+. Smith 292) which was writ of error to -
Armstrong directed to the Oyer and Termner
separate docket was kent in ,1ver and Tar. ing t
miner and the Suproma CAN'T bald tbot n. blooo
the record purported to be the record of uiey
Quarter Sessions it must be so regarded and prom
treated AZ
The indictment was for murder 1t was ob,,i
-; 70 .,f " .ica1 ing coult oi quarter vrtu
er to try and punish the defendant and if hnd,
as appears by the record he was tried con- tions
80 -. h sIei'ii 1 'tT "i'9io Pio' stand
n,ar onI 'e Tau; nau zen ia iact 'ileu IN Tue body
been corrected by an order of the court hi,n'n
auhc pro tanc, as was afterwards permitted III ~
in the case cited and as was done in Brown 90,
Va Commonwealth, Us p. +. $. 1927. But tSois
until such indictment or change is made the ,han
record must be taken as it stands, and cannot r"a
be supplemented by parole evidence. No Tbeii
part OF Judgment can rest Oh parole. Xim- and :
norman vs. Briggaus Is. Watts 1867. Inas from,
much as the record of court il to be taken "'
As imparting absolute verify it can not be ou .
shown by parole that it is the record OF nor a
different court from that it purports to be. ha -
There are other questions raised by the evil s,I,,
ience in regard the paying of the fine i'm ami
posed and ending the imprisonment for the hino
time mentioned in the Indictment. But as g.,
upon the whole showing am of the opin-
ION that the witness il not incompetent, ,
give no opinion Hpon those questions. Dr.
The objection to the competency of 80,
Daniel Kelly is overrued. Exception by '''-D
counsel for defendants oct.
WM. ELwELL, =. j.
Mr. Parr who had testified 10 hear. y-i
ing Hester's confession to Donohue in the IN
prison, was recalled by the defense and i'm
cross-eSamined at length. lie stated that bNl
he bad shot two Mollie Maguires on one oc-
easion, was acquitted by jury and driven