St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1889-01-29

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final act in this tragedy. The decisions
were filed last evening, and in each case
bore the signature of collins, j."
They are as follows:
State of Minnesota, respondent, VS..
Timothy Barrett, appellant.
The defendant, indicted for the crime
of murder of murder in the first degree
Jointly with his brother Peter, having
obtained a separate trial, was found
guilty of the otfense of murder. From
an order denying q new trial and from
the judgment he appealed, alleging
numerous errors of the trial court in
empaneling jury and IN admitting
and excluding testimony. He also
averred error Of the court in refusing to
certify OF record its opinion that by rea-
son of exceptional circumstances the
penalty of death should not be awarded,
and error in refusing new trial on the
ground of newly discovered evidence in
its judgment inficting the sentence of
death by hanging. The opinion filed
by the court says: 'Upon the prelimi-
nary examination of proposed juror
G. G.. WilSOn-he was challenged by the
defense for actual bias. To establish
this condition of mind, wholly denied
by Wilson, the
MOTHER OF THE ACCUSED
testified to the use of certain language
in conversation with her upon busi-
ness matter, but in reference to de-
fendant and his brother 1t further ap-
peared that whatever was said was in
the presence of Wilson's clerk, where
upon the counsel for defendant de-
nl1n6n6 nf 10 irt
whereby the clerk could be compelled
to attend and testify to the couyersa-
ton. The court did not err in refusing
this demand, nor in submitting the
merits of the challenge to the triers. 1t
is statutOry-Sec. Is, chap. 116, G. S.
1876-that witnesses may be examined
on either side upon this preliminary
question and by the ordinary rules of
evidence, but the defendant had no alb
sOlute or unqualified right to ask, under
the circumstances here presented, that
all proceedings should be brought to
halt, the compulsory process of the court
issued, and the clerk produced as
witness. The juror was of the regular
panel, Of which the defendant undOubt-
edly took notice. TIE expressions of
ill-will are alleged to have been made
to the mother, and she must have known
that the clerk was present at the time.
Had the counsel made a natural and
simple inquiry upon this point. they
would have been advised that he was
in position to overhear all that was
said between the mother and the juror.
They should have been prepared to sub
NIT the material testimony bearing
upon the jurors competency, and it was
not all abuse of discretion for the court to
refuse to issue its process and suspend
i hot @I,n
might be had. 1t follows that the court
pass upon the merits of the challenge
FOR ACTUAL BIAS.
1t is next considered that while en-
paneling the jury the court ruled er
roneously upon the qualifications Of GER
tain jurors of foreign birth and parent
age, thereby compelling the defendant
to use five of the peremptory challenges
guaranteed him by the statute upon
men who, for the reason stated, were
incompetent to sit as jurors in the case.
1t is the fact that when the last juror,
William Powles, was called to the box,
defendant had exhausted his right to
challenge without showing cause; that
FIVE of these challenges had been used
upon men who were disqualified unless
there was competent evidence of the
declaration of each to become a citi-
zen of the United States, and that
Powles was also of foreign birth and
parentage. The state submits the prop
ositiOn, however, that upon the voir
dire of these persons it was shown by
proper testimony that each had in due
form declared such intention in con-
fOrmity to the various acts of congress
commonly known as the naturalization
laws; and therefore by virtue of section
8, chapter II, and section 3, chapter III,
General Statutes 1878, was qualified
juror. Further technical details of the
case we're similarly dealt with, and the
examination of the testimony herein, we
have no hesitation in saying that there
is nothing which indicates that the
learned Judge who felt impelled to
REFUSE A CERTIFICATE
which would have made the sentence
much easier one to pronounce, omitted
or neglected to carefully weigh and
earnestly consider every circumstance
and all that could be said in extenuatiOn
by the counsel for the convicted man.
Upon the motion for new trial there
was used in support of the claim of
newly discovered evidence, the atfida-
Wits of julius c. Heyn and his wife
Gertrude, Adolph Heyn and his wife
Louisa, HatrlcK McLduS Lillu, Mal
Strong and E. A. Mitchell. Each of
these persons had testified for the de-
fense on the trial of Peter without affect
ing the result, and the court stated in
its order, when treating of this branch
of the motion, that such fact largely
affected its conclusion that upon this,
as well as other grounds, the motion
should be denied. 1t was held that the
trial court was fully justified, but could
have stated additional reasons. The
affidavit of Mclaughlin differed somuch
from his testimony on the trial of Peter as
to excite suspicion and distrust even if its
contents were of great materiality. The
opinion concludes: 1--WE may say that
these affidavits were well met. and in
the main disposed of upon the agrument
of motion by the atfidayits produced in
behalf of the state. This notice WAS