The Portland daily press., 1879-02-04

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was conspiracy to account for this proper
ty, and by SO accounting, to explain how
and why he was no longer its absolute
owner, and by pretence of fictitious loss, to
attempt to satisfy the court that he had re-
ceived and lost portion of the sum, es Sc
curity for which he had encountered it.
In the opinion of the court these
averments, in this count, bring the case
within both the letter and spirit of the act as
a conspiracy to attempt to account for his
property by fictitious loss.
There is also q motion to set aside the
verdict for alleged misconduct of S. F. Piper,
one of the jurors, on two occasions-frst in
conversing with one of the witnesses, in
room in this building in the basement adjoin-
ing the water closets.
Leroy S. Sanborn testified, that he was a
clerk in the post office, and was in the water
closet December Is, when the trial was about
half through, The door of the closet was
partly open, so that he could see into the
room. Heard voice say, zone is as guilty
as the other" Looked out the door and saw
three men come in. One was Thomas
Bracket, the other two, witness did not
know. One had on hat, the other did not.
Heard the man without the hat say to
Bracket, II saw you on the stand, didn't II"
Bracket replied, "Yes. was" Then the
man asked, ibid you lose any thing by SWEET
or Hollands" and Bracket replied, ave did,"
The man with the hat on said to Bracket,
"What kind of a fellow is Swetts" and
Bracket replied, "He is tricky bugger, but
people have good deal of sympathy for
him since he came out of the army" The
same man then says to Brackett "Holland is
pretty good fellow, amt he!" Witness did
not catch the reply. During the time these
mon xverh thero Tohieo Eaetpoan apd CappoJ
Dingley came in. The man without the hat
witness afterwards saw on the jury. In
formed Winship of this conversation, the day
the verdict was rendered. On cross examina-
ton witness stated he had known Winship
as long as he could remember went to school
to him, had been on very friendly terms with
him, expressed my sympathy for him during
the trial and my hope of his acquittal. 1
knew Bracket. he shook his head, to the
inquiry about Holland being a pretty good
fellow. l was twelve or fifteen feet from the
men while they were talking.
Tobias Eastman testified he was in the
room where the water closets are, the day
after Bracket testified. Recognized Bracket
there and two of the jurymen. Could not
say whether they were talking together and
did not pay attention.
Isaac d. Waterman testified that he was
one of the jury, and went with Piper to the
water closets and was near him all the time
he was there. Don't think I heard any con-
versation between Bracket and Piper, Heard
some talk; something about Shaping in
face. Piper made no conversation with
Brackett that know of. I did not hear all
the talk; within my hearing Piper made no
conversation with Bracket.
Samuel F. Piper testified he was one of the
jurors. Went to water closet with Water
man. Asked gentleman, who resided in
Gorham or Windham, what kind of a man
SWEET was. He said people out there had
good deal of sympathy for him, and that was
all that was said by him; nothing else said by
Bracket. / asked the question because had
seen man on crutches at White Rock yearly
meeting, and thought it might have been
SWEET. did not inquire about Holland, as
I knew him when he lived in Limerick. The
man did not say that SWEET was tricky
bugger. / have stated all that I heard said.
Waterman was about two feet from me at the
time of this conversation.
Thomas Bracket testified that he did not
think he had any conversation with Piper;
did not know the man till to-day. I answer
positively that never said SWEET was tricky
bugger-never said any such thing.
To authorize the court to set aside yer.
dict for misconduct of the jury, such miscon-
duct must be satisfactorily established, the
burden being upon the moving party. San
born's testimony certainly tends to show that
one of the witnesses, in conversation with
one of the jurymen during the trial, made
statements prejudicial to the character of
SWEET, and calculated to impair the confidence
of the juror in him as a witness. Such state
ments should appear to have been made in
the hearing of the jury to affect the verdict.
Sanborn was apparently fair, candid and
intelligent witness, and the only reason for
questioning the correctness of his statement,
is his sympathy for Winship and the friendly
relations between them.
Bracket positively denies that he used the
expression attributed to him by Salborn.
Piper admits he conversed with Bracket, and
that Bracket remarked "people out there had
good deal of sympathy for Swett," but he
swears Bracket did not say SWEET was
tricky bugger." Waterman did not hear any
conversation between Piper and Bracket,
although they went together to the water
closet and were near each other. and Eastman
called by defendants, says the jurymen were
there with Bracket, but could not tell
whether they were talking together. Two
witnesses, therefore, are found contradieting
the statement of Sanborn, and testifying that
Bracket did not use this language, and the
court having seen Piper upon the stand as
witness does not feel justified in believing
him to have been guilty of wilful falsehood,
although he certainly deserves apprehension
for conversing with any one about the case
while on trial, against the urgent injunction
of the court. If such language was used by
Bracket, it certainly did not attract the notice
of any one but Sanborn, as it was not heard
by either Piper, Waterman or Eastman, as
they testify, and the defendants therefore,
could not have been prejudiced by any re-
marks of which the jury were not cognizant,
although made in their presence.
1t is also alleged that Piper conversed
with Edwin L. Dyer, while travelling on the
cars of the Grand Trunk railroad, on Satur-
day afternoon, the case for the government
having been in progress some four or five days.
Dyer is an attorney at law, quite lately
admitted to the bar, and formerly a student
in the Office of Drummond & Winship. His
testimony is that he took a seat alongside of
Piper, knowing he was juror, and entered
into conversation with him. Piper said, ''they
had pretty interesting case; it was long
job He replied, "Yes." Piper then said she
thought there was a good deal of rascality
there, and that Winship knew something
about it, and he should receive no mercy at
his hands" Told him che ought to be careful
what he said" Did not inform Winship of
this till day before yesterday.
Piper admits he had conversation with
Dyer in the cars but denies that he said
Winship should have no mercy at his hands,
and insists that it was Dyer who called Win
ship the rascal. With this conflict between
| the witnesses, and with the burden on de-
| PENDANTS. the court is not satisfied that Piper
| did use the language attributed to him by
Dyer. If he had, it would not afford sufi Gent
cause for new trial.