The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1879-07-27

along the wall the precise height of which don't re-
raeniber but there is testimony to show and 1t APP
pears upon the drawings. man must draw himself
from the cellar floor this ledge, up through
the hole, which was about two feet wide. without
the crooks being there; fourteen sixteen
inches high. between the other boards and the stairs
above man must draw himself up; he must have
the and force of his to do it, with such aid
he get with his feet on the ledge. 1t may be.
perhaps is. possible thing to be accomplished.
The jury will look at that Ii it not possible to
do IL Is important circumstance in the ease it
IL the only place where there any sign violence
in gaining entrance. NO window or door is broken:
indeed, far appears. the doors not locked
tho windows fastened. Why go into the cellar
and break up the floor and remove earthen and iron
jars to get in house where they had but to turn
the latch of tho door or step through a window?
These are matters the jurors must pass upon. be-
canse they tend to throw light upon this question
of whether the truth is told whether there is
design or contrivance. Why should he 60 out that
way? why creep through such space into the cell
lar to get out to tho closet where the weapons
found If these were the weapons that were used?
1t will be observed that in these remarks tho
'story" that ''somebody" came in by this broken
floor and removed the 'crocks." Just as ascribed
chloroform. With regard to the use and effects OF
the drug upon her. he had clear right to hold
her responsible for such statement because that
sho had made statement to that effect
incontestable fact in the case, and admitted
all sides but had he right to assert in his
charge to the jury that her STORY of this defendant
that the murderer had entered by removing the
board in this closet If it her story" then she
had narrated the fact part experience Just
she had the fact OF having boen made insensible by
the choroform. In the judicial statement the
circumstance is as much part OF her story as the
other the both represented portions of her
narratives OF matter that had equally come under
her own observation.
TASTED THE cHLonoFoRM.
Tho language used is 'either this story is truo
that somebody came in by this broken floor and re-
and struck her husband aud left while she slept
Now, she had testified that she had tasted and had
felt the effects OF the ehloroform. and when
of tho assassin's blow; these things she
had told and they were her story. Had she stated
in the way that somebody had come in
through the broken floor Of this closet? And not
only in tho clause just quoted does the charge i'm
auent passage the jury is told-"Upon the truth of
her story you may ask yourself the question. Why
go in this house in that wayy-that is in order to
test the truth of the defendants story that the
dercr had effected his entrance through the broken
door Of the closet, the attention of the jury
Is invited to the iinputability Of such q story
from the great difficulty OF person being able to
force passage for himself in this way. The charge
difcultes to be overcome in etfecting such an en-
trance. and concludes the description Of such
III endeavor with the remarks :-"It may be. per-
haps is. . possible theory to be accomplished.
That the defendant is held up as responsible be-
fore the jury for story to the way the orderer
got access to his victim which is SO ntrinscally i'm
probable that, to the mind of tho presiding Judge
its truth is only within the range OF possibility
Undoubtedly this Judicial exposition of the case
put this defendant in great peril.
Tho inquiry then arises, Was this defendant liable
at all under the evidence to the imputation of hav
story? Was the learned Justice justitied in any de-
gree in laying to her account the story that the muir
derer had entered in this way, in the same
sense that he could lay 10 her account
the statement with regard to the chloroform?
The answer to this depends altogether on the cir
cunstance whether there was any evidence what
in the tending to show that this defendant
had made the statement in question. Was there any
proof, direct or nferentia that she had ever told
any story whatever on this subject? II there was.
then the Judicial assumption from such evidence Of
tho fact and the presentation of it fact.
assumption may have been, and however
clearly such indiscretion would have been
effective in procuring new trial and motion tor
that purpose Will not constitute an error in law
upon which this Court can reverse this Judgment.
The question is, therefore, whether there any
testimony upon the subject. whether the alleged
fact OF hor having told such story intro-
ingredient. That is matter that can be settled only
by appeal to tho evidence. and the point of it
is of SO much consequence, have collected all the
testimony the subject and will set it out in full
WRONGLY ATTRIBUTED.
Here the Chief Justice road the portions of the
testimony of Officer 'Neill, Captain Lennon. Hattie
Smith and Jennie Il. Smith relating to this point
the condition of the closet and tho hole in the floor.
He then continued as foiows:-
From this series of citations 1t is. in my opinion.
conspicuously evident that there was no foundation
In tho testimony IN this for the attrbuion to
this defendant of story on the subject i'll question.
She never, ut any time any occasion. pretended
to know anything about 1t. When assisting the
officers in their search she opened tho door OF this
closet and stated, what was undoubtedly tho fact,
that the hole at tile back seemed larger than il had
becn and that what she called her crooks had been
moved from their usual position and time ter
ward. when asked her opinion by her companion III
Jail she said the person that had committed the
murder had como in through the closet. Such
her inference, but did she have 'story" with
regard to the matter to the truth of which she
committed that, the put by the charge,
upon the Justification Of it by the evidence, she
was convicted OF falsehood and OF having resorted
to contrivance to turn aside suspicion. She
more stated the fact in question matter within
her experience than did the policeman who theorized
upon the subject and drew similar infer
ence stated q fact within his experience.
1t is to be remembered in this connection that
defendant gave history of her relation this
affair that entirely negatvei all pretence that she
claimed to have any knowledge derived from her
with respect to the particular in question. In
tho account that she gave OF her stupefaction by
chioroform-an account which, if untrue. is such
marvel of plausibility-she said that she asleep
when the assassin entered tho room and that she did
not return to consciousness until after he had gone.
There was no room here. therefore, for any
story on her part as to either his coming going
She not only did not tell story that respect, but
precluded the possibility of her doing so. The
chloroform transaction had been verified by her
senses. according to her statement and she had
story to tell about that and OF which story truth
fasehood could be predcated; but with regard to
the matter investigating, it impossible, by
her showing. that she could have any thing to
tell that had been thus verified by her senses,
that moral test could be applied to it,
AN uNwARRANTED cONCLUsIoN.
And at this point 1t IL well to notice that there
was nothing in the testimony in this that leads
of the floor and OF the articles in this closet had
been the work of the murderer. for thore
evidence whatever to show that these things
were done ON the night OF the homicide. Neither
Mrs. Smith nor any other witness testified with
spect to tho time when this closet had been
last i'll its normal condition. For
aught that appeared the board may have
been out Of its place and the jars dissrransed
for days. or even weeks, prior to tho time of the
commission of the crime Mrs Smith said that this
board was loose. and who, therefore, could con-
hdently say that, for some purpose undisclosed to
Or he
the closet, the murdered himself tho
evening preceding the morning Of his death
at some antecedent time may not have
displaced this board and thus have
stoned its fall into the cellar. In addition
to this it by no means followed tho conclusion that
this disturbance OF the closet tho work Of tho
assassln-that he had effected either his entrance
exit through this opening--for no may have made
tho attempt and may haAe been banked by reason
of the opening being too small La such situation
of the proofs, and in the presence of the declaration