The Somerset herald. [volume] (Somerset, Pa.) 1870-1936, 1889-11-13
DOOMED TO DEATH.
JOE AND DAVE NICELY
MUST HANG.
The Court of Last Resort Over
rules their Appeal and Sus-
tains the Judgment of the
Court Below.
No Chance Before the Pardon
Board.
All that Remains 10 for the Gsv-
srnor 10 Designate Day tor
the Execution.
Deputy Sheriff McaIllen Isfsrms the
Prisoners or the suprems Courts
Decision.
Fun Text OF Chief Justice Paxson's
Fun Text Of chief Justice Paxson's
Opinion.

Fun Text Of chief Justice Paxson's
Opinion.
Ever sincr the argument Of counsel
before the Supreme Courf Of the State at
Pittsbnrgh on the second Monday Of Oslo
tober for reversal Of Judgment in the case
Of the Nicely boys. convicted at May term OF
Court Of the murder Of Herman Umberger.
and sentenced 10 be hung, the Predominant
question throughout the county has been .
Have the Supreme Court handed down their
opinion in the Nicely case p Interest in the
famous case appears to be as great to-day as
il was preceding and durns the trial and
bids fair 10 CO 0ntinne until the awful penalty
Of the Law has been carried into effect.
There was never the slightest doubt enter
tanned By the people Of the county as TO
what the opinion OF the Sapreme Court
would BE-, but when they stopped 10 think
Of the soluniaoas paper book Of over 400
pages, submitted 10 their honors 10y counsel
for the defea ianis, they had no idea that an
opinion would be handed down before the
first Of the yesr. and still the case was 50
clear and doabi 50 unreasonable, that per
sons from the cOuniry were impelied to ssk
a. Has the Supreme Couri handed down their
opinion in the Nicely case almost the first
thing IN meeting.
Shortly after 10 O'Clock Non iay morning
a telegram was handed 10 F. J. kocser, ESQ.,
Of counsel for the Commonwealth. which
read The Nicely case affirmed A smile
Of triumph could be seen creeping over the
attorneys brow as he re-read the message
Not vindic;iye smile, bat such a smile as
any attorney might proudly wear who has
labored for and won an important case. The
decision Of the supreme Court was soon nois-
ed abroad. and the same satisfied smile
which the Com ~ onw ealih's attorneys wore
could be seen on the faces Of all who heard
the decision.
THE FRIs0xEEs HEAR THE DECISION
Depusy-SherifT Milt McMillen went into
the pri son shortly afier dinner and broke
the news 10 The prisoners. Its hard if it's
trne. " said Joe Nicely, his blanehed face
turning painfully pale. II said nothing
mere 10 the Deputy-Sheriff but crsEled onto
his bunk xaeze the p,lr Erssch was after
wards visiiel by the wAtchm "A who fund
him crying bitterly
Il expected nothing else, YVES all that
Dave said when the Depuiy Sheriff told him
Of the Supreme Courts decision. He never
/ changed color and for the first
( time seemed inclined to talk. but sf-
ter mediiaiing a moment he said
] suppose cur attorneys viii be in this
afternoon and with that he commenced
walking up and down his cell with as much
freedom as the chains al his feet would al
low
/ Attorneys Koontz and Coffroih counsel for
/ the defendants. visited their clients in the
county jail Tuesday morning. II is not
known what the result of their interview
1 was. nor is il known what step viii next be
/ taken in behalf Of the condemned men, bat
hope spring eternal in the h uman breast"
and We have no d1u5t that the case of these
two unfortanates will be laid before the
State Board Of Pardons. Meanwbile all that
remains to be done before the final chapter
Of this horrible crime can be written. is for
the Governor Of the Commonwealth 10 name
the dsy on which the condemned men shall
/ be executed. when the Sheriff OF the county
viii carry the dread sentence Of the Law into
effect
OPINION or THE SUPREME COURT.
Appeal Of Joseph Western Dist.
& David Nicely from
the Judgment Of Oyer No. 1876,
& Terniner. Of som Oct. Term,
erset County. 1859.
PAxsos, C.J.
-But four Of the numerous specifications
Of error in this case require notice; none Of
them nesd extended discussion. The de
PENDANTS below we're indicted for homicide,
and were convicted Of murder in the first
degree
AT the trial Of the cause the District At
torney appears to have been aided by private
counsel. and the defendants complain tha,
in many instances things were said by coun-
81 tor the Commonwealth either directly 10
the jury, or in their presence or hearing.
which we're not warranted by the evil
dence or which were unfair comments
upon H. While the matter has been
brought upon the record by excep-
lions we have only isolated passages
extracted from the remarks Of counsel. gen
orally three or four lines, and we can but
imperEecsly judge Of their character and
propriesy nor can we tell how they may
have been qualified by what preceded or fol-
lowed them. am not aware Of any way by |
which the speeches Of counsel can legally be !
placed on the record nor do well see how !
the Judgment Of the Courf could be reversed |
by reason Of their remarks l would regard /
any system Of practice by which error could /
be assigned TO the summing up Of counsel as
very great calamity. In tie instances CON-
plAineG Of the record shows that whenever
the attention Of the Court was called to /
then. the learned Judge treated them as |
harmless and directed the jury TO pay no re-
gard 10 them. As an illustration / refer to /
the Eighth specification. II is as follows:
..rbe Court erred in its answer to the sec
ond exception Of defendants to the remarks |
OF counsel for the Commonwealth TO the
jury, which said exception and answer is as
follows:
This trial viii so very far to show wheih
er every merchant OF mechanic is 70 be safe
from masked villains
Tie Coart This eight Of oratory must
not have any effect on the jury"
These are fair examples OF this class Of
specifications while they do not furnish |
any legal ground for the reversal Of the
Judgment. they are suggestions Of heated
zeal on the par. Of the counsel engaged on
either side in the trial in this case Il is diff
hculi to measure the amount Of zeal which |
Is allowable OF at least excusable on the part I
Of counsel engaged ir-the defense Of man
who is on trial for his life Writers on pro-
feszionaI ethics differ upon this subject, and
/ will not discuss IL We have no difficulty.
however, in measuring the extent Of zeal
which counsel for The Commonwealth may
properly display upon such occasions. The /
District Attorney Is 3 quasi judicial officer
be represents the Commonwealth and the
Commonwealth demands no victims He
seeks justice only equal and impartial jus
tice. and II s as mich the duty Of the Dis
trict Attorney TO se that no innocent man
a., e.. - i AZ Il, ss-a fhaf M -r,fffv man -