The Somerset reporter., 1885-09-02
J. Frank Walker.
To Have q New
Trial!
AN EXHAUSTIVE OPINION
DRAWN BY JUDGE
FOSTER.

The most important business transacted
nj the Court House yesterday was the
handing down of an opinion i'll the cclc-
hratcd Walker case. Judge Foster drew
the opinion and ii is coucurrcd IN by
Chief Justice Peters and Associate jus
tees Danforth, Emery, Walton and Libby
The prisoner is granted Il new trial. The
decision is naturally very gratifying To
his counsel MesSrS Walton and Parln
since the case was agreed at the Law
court at Augusta. The case will doubt
less be taken up at this term of court,
The civil suit brought against j. Frank
Walker and his father hy Isaac Daggett,
father and administrator of Albert Dag
get, deceased, was settled by the defend
ant before the granting of the new trial
in the criminal case. Below is the dccis-
ion in full;
The prisoner was indicted Tor murder and the
Jury returned verdict of murder in the cond de
gree The case is before the law court on cxcep-
tions.
At the time of the shooting which was not far
from nine O'Clock in the evening, the deceased was
in front Of respondents house, either upon the pi
azza or in the ward very to it. n party of Is
persons had assembled for the alleged purpose AS
claimed by the prosecution, of sercnadng the re
spondent who had been recently married, and upon
entering his grounds the party commenced blowing
horns firing guns, ringing bells and making other
noises both in the yard and on the piazza of the
housc The respondent with his wife and father
and two other persons in the house at the time.
! All had retired for the night and lights were
burning. 1t was claimed by the respondent and
his witnesses that after the demonstrations had con
tnucd at intervals for nearly an hour some of the
| party outside made an assault upon the door and
tried to hurst it in, threatening to take the respon-
dent wife out into the ward, and making other
threats against the respondent and his wife. The
witncsScs for the government denied that any as
saut made upon the house, or that such threats
were used or any provocaion given Tor violence to
be used against them by the persons in the house.
| The testimony of the respondent and his wife WAS
that upon the first discharge of the guns the wife
became unconscious and 81 remained when the re-
spondcnt left her in the bedroom shortly before he
fired. The respondent stated that he took his pistol
from the place where he had been in the habit ofkecp
ing it ON the table in his BEDROOM and placing ii, in
his hip pocket. passed from the bedroom through
the kitchen. through the entry, and across to the
further side Of the wash.4oom, and fired it first out
eia window in an upward course for the purpose OF
frightening away the party outside that returning
toward his bedroom as he passed through the en-.
try. hearing assault made at that instant upon
the house. accompanied by threats of violence to-
ward himself and his wife whom he then supposed
to he lying nscnsible in her bed, under the excite
ment of the moment incident to such assault and
threats, he discharged his pistol through the side
light, but claimed that it his pistol that did
the killing. And he Furthermore claimed that, il il
was his pistol that did the killing, the excitement
incident To the circumstances under which he was
placed at the moment of discharging it, was sucl
as to justify the act, and if not justification, thai
he should then be adjudged only guilty of man
slaughter. While upon the other hand the govern
ments position WAS, that, in any view of the case
the fatal shot fired under such circumstances o
motive, purpose and intent as constituted murder OF
the part of this respondent.
1t appeared in evidence that Leonard II. Walker
father of the respondent, met him in the entry JUS
at the moment the respondent discharged his psto
through the side-light.
In answer to the question ''what if anything, di,
You find or hcar?" propoundcd by the respondent
counsel, he said AT that time they were rattlin,
the L-dour, and when got to the entry door me
: Frank there, and they trying to get into thu
door, and Frank seemed to he frightened, and pu
my arm ON him and he was all of tremblc ant
Frank spoke and"
At this point objection was interposcd by thu
counsel for the State tn any statement bv the wit
ness rs to what the rcsno,de,t said and tbr dccl,r
alton was excluded IN which .xcen,io, v,os take,
bv I'M, res,o,d.nts counsel
From, tho ,,,,,ri.lI, diaoro,, s,a,ano;,,. ,,l.,
bv the government and the rcsnoud,nt in rela,;o,
IN the circumstances under which ,b ,,l sim, ~,
. 6rcd :, hsc,,,. ;,,,o,t,,, .. sc,r.;,- ,l, H.,
circumstances ,v,r,. ,yhv rho shot was sred. :,
h., .o,d;t;o, az i,d tt, r.sn,,,,,..,. ,,, =, ~.
tim, he d;scb,rged his ,isoI. whether ,b. net wa
done with delh.r,tior or r,d.r s,rb s,,d,, .,
r;,n,crt f FAM r,.s;a, a. nr,'or,,i,,, ,s ,,,,nl,
.,,,,,, ,, IA, 81, MI. S., ...., . -.
slaughter /, was ,I rroyircc of III, inv ~ d,,er
r,;,c these questions from ,h. o,idcnc,. boG,r.
them. 1t Law in their power tn find the ,csno,de,
guilty of murder in the first or second degree; q,
they might find him guilty ot manslauphtcr only.
The motive with which ,bc ,rt of killing was
done would necessarily be an important factor in
| which u
three grades of homicide this crime would fall
The principal fact was in evidence and was mate
rial in the proper investigation of the case.
We're the declarations of the respondent, accom-
panying the act, admissible in evidence? We are
clearly of opinion they were and should have been
admitted in evidence as part of the res Destde
"Where evidence of an act done by party is adj
missible, his declarations made at the time, having
tendency to elucdate or give character to the act
and which may derive degree OF credit from the
act itself, are also admissible as a part of the res
0eStdt'
sessions y L'fAe' N II. III 1t the declara-
ton is made by party while doing an act, the ma
ture, object or motive OF which is the subject of in
quiry, and serves to explain it, then such decara
ton is admissible in evidence.
And it is generally in this class of cases, where
either the nature object or motive of the act is
ter'a that this rule receives ITS broadcast application.
The declaration becomes important as forming part
% eel Tho, bnt ,y1,s