The Somerset herald. [volume] (Somerset, Pa.) 1870-1936, 1889-11-13

privaie counsel 10 assist ilim in The trial Of q
cause, ssiei counsel represents aim 10 that
extent and should be governed by the s4n. {
rules Of propreiy
Upon the argument ofthIs case at the bar
much stress Was laid upon Tue second speci-
fcaiion which alleges that the Coun below
erred IN excluding the ross-examinafion Of
| Ella Nencher in regard to the spocEAlboos.
10 understand this point it Is ssecssxary 10
state that when the deceased, Herman Tar
berger, was murdered Ia his own home on
the evening Of February q. iss9. two pock-
eibooks were taken from his person con-
tanning upward OF $4,000 in money.
Tie oommonxesith has offered evidence
10 prove that David Nicely, one Of the de-
fendants. had, on the day ot his arrest,
while being conveyed 10 Somerset eonnty.
and when no one else was present. gave
pockeibook to William Thomas, the driver
OF ihecarriage; that Thomas gave the same
pccke,book 10 Nicely's brother-in-lsw, Ne
nohsr: that Menoher had given the same
pockefbook to his wife. sister Of the de-
sendants, the witness on the stand. Tie
latter iesiiGed chat her husband gave her
pocketbook sfter ihe defendants we're arrest
si ;hGi she laid Il upon table. that her
nsoihes gave il 70 The officers. and that II
Was the same poekeibook she had received
from lier husband At this point the de-
fendant's counsel intersosed the cEuss-exaH-
inaiion referred 20. the object Of which was
10 interfogaie the wiiaesS as 70 the identity
Of the pockelbook Bat the Commonwealth
had not asked her question As 10 is iden-
tity. they did not call her for any such pnr
pose on The contrary she was only
asked 10 trace the Pockesbook.
Another specification Of error is to the man
ner Of receiving and recording the yeniic.
gSee 27ih Excepsion.) Whist occurred in re-
gard 10 the matter may be briefly stated as fol-
lows The jury came in with a verdict Of
guilty in manner and form as they stand
indicted. In this there vas no finding Of
the degree Of murder as required by the Ae.
Of Assembly. Before the verdict was act
uaily recorded and before the jury had lefi
the box the Court sent them back TO their
room with instructions TO find the degree.
they returned into Court aud rendered a
verdict OF guilty Of murder in the frst de
gree Upon being polled each jnror render
ed the same verdict, which was then daiy
recorded and The jury discharged We see
no error in This. The verde, as jnst retnrn-
ed wGs not compliance wish the Act Of
Assembly and the learned Judge was entire
y right in sending the jury back TO amend
il. He would have failed in his duiv bad
be not done 30. The allegation that there
was nothing to amend Is plausible bui IN
sound. There vas the Act of Assembly o
amend il by.
Had the verdict been recorded and the
jury discharged, when they hrst came in
We would have had a different question be
fore US. We might in such case be con-
strained 10 hold Under the authority Of
johnson vs. the Com p Pa 3s6. that the
verdict as originally rendered was verdict
of murder in the second degree ONLY. But
there is neither reason nor authority for
holding that where jury comes in with
defective verdict the Court may not send
them out sgain 10 amend Il. Authorities
are abundant upon this point, but il would
be waste Of time to cite them.
The time has gene by for convicted
murderer 10 escape upon mere techDiealiiies.
This harmless hlunder Of perhaps inexperi-
enced jury did defendants no injury There
was a time in the history Of the Eagi.>h
criminal Law when great crimes weie left
anpunisbei because Of harmless technical
errors. This greater siriciness was perhaps
due 10 the lsci that al that period the crimi-
nal code was especially bloody. Capital
punishment was inflicted for very trifling
oiIenses, and II may be the judges sought TO
aueliorzte its rigor by holding the crown to
the observance of the merest iechnicalities-
We all know that Lord Hale declared
these legal nicefies, or duibbies, We may
rather call them. as tending TO allow many
rogues 10 escape from punishment Of serious
crimes.
With the advancement Of Judicial science
and more enlightened administration Of
the law, mere techuicalities are less regarded /
when they work no harm to a defendant
We have closely examined all the assign
menis and find no error. The Judgment in |
this case is affirmed and il is ordered that
the record in this case be remitsed TO the /
Court below for the purpose Of execution