The Somerset herald. [volume] (Somerset, Pa.) 1870-1936, 1889-08-21


iEg - the teSfi-1esiy u Any He6EeI
would nor s4rrant grzngag = i4-a triai.
II islrai.er silplsari IF the reasons assignee
the testimony cf Davis isnaier aasi J5tif
N-noher We frac flss f3rmer ssys. Can,
ssVs 4;-,t toe ps9rise,h3ok paiieg' i oai u 81
. psekst Ioas3 sskgd vi h,sse ID W.t sns
Be szai mhsrgers, and sl-s ar knew Il -
sl-s5ieTgsrs leIzrse af tsls c8Frer being fs.su
ei casTn. etc sazll fiieFes ~ hing ee-sa5l
ahonz that Tor snyone was tarned down ilis
E9s carried II The hreast pccSrt. uiae -.
ta1s xsY. He says hs d.ia have the peck
eiseos Ia his ean,ls and dsdal see @ uh5n
spot On il.
The szr9er says that f3arap said Sc g1s i a
s. A. Niceivs. and Wnsn aszed wilgse j
was he said Un5bergrr' : and tnuk Il oa' of hi
packet and turnelt i around and wines.
ssys ae saw i was not the oc sef000k tbal
W4;S5n Menoler hGd Al the Saticnsl Hoie
snd hsa brought scnass Laurel Hiii H
Ssys he examined Il hef3re Wa-soa took i
from the hotel 10 take 70 Nieely sad i had
the outside OF the flaps cut oval, Ike al en-
vrlope. and had no piece aGi Ur rubbed Oui
Of il that showed the white paper and 4 was
not pliable ike the one shown by Camp
Davis Aenoher was present He ssys his
brother Watson and az were partners in the
hotel-he didn't have the Camp pOcketbook
III ITS AdItti--
Watson Menoher. who IS referred TO was
witness on the trial and was partner ol
Johns, and on the trial said Thomas gave
him Poelcet-book with 500 and so1ie pa
pers in it. ard that he put it in the n0fel safe
and afterwards left the money in the SAFE
and took the pocket book 70 the father
Of Ms. Menoher, A 4. Nicely, and the. 4
was the same that Thomas gave him. Due
diligence. Il seems, on part Of the defense
would have discovered before trial what
John Menoher knew, as be was partner Of
Watson's but IL due diligence was used.
the testimony Of both John and Watson Is
merely cumulative, and does not come with
in any rule or any exception 10 The rule that
would warrant granting 3 new trial On such
testimony.
The testimony Of DR.. Anderson is in no
sense newly discovered, nor was due diIi-
gence used. and it Is only and merely cnn,a-
lative testimony IN thesam line with that
given by Dr. Brubaker on the trial.
The testimony of the yourg daughter Of
Joseph Nicely, one OF the defendants, may
fairly be considered as newly discovered, Is
possibly the maIeriality Of tie patch On the
coat was only made apparent ~ The tEizi
Mamie Homer on the trial identified David
Nicely's coat BY patch on il which she
said she saw az the time Of the homicide
This witness, Lotfa Nicely says she was -
the house Of her uncle David the night
Frank Graham was serenaded. and th&s
night both she and Graham say was thar of
the 2Sth Of February, which wOulG be the
night after the homicide; that Mrs. David
Nicely was there patching an ovsrcoat /;
don't know just what part Of It; didn't take
notice; was patching holes gray overcoai !:
il was uncle Davids cTercOat saw him have
il on didn't take notice Just where the holes
were; was putting other patches On-daTk
patches il was in The evening between SIX
and seven O'Clock uncle David was at home;
didn't 20 home alone, my mother went
with me-
TIE patch on the coat was q controverted
fact on the trial After Mamie Hcrner had
testified 10 il. David Nicely. one Of the de-
fendaBts and his wife, both testified that the
patch was put OF the ceat on the night or
evening Of the 2sgh Of February as this wit
ness does. That the evidence IS cumulative
is clear. That il is merely cumulative and
goes only 70 c0rrpbofats the defendant and
hrs wife who testified on a former trial and
does not relate 70 any new hsc;. nor corne
within any exception % the rule. seems
clear. Whether due diligence was used, IS
not 30 elear The coat Itself was not
shown the witness az the taking Of hertesti-
mony. Was the coat she refers 10 the same
coat that was in evidence on the trial Was
the particular patch referred 70 oy Mamie
HOrner Put on at that tine2 Were they all
put on al the same time9 The defendant and
wife on the trial say yes but the jury found
adversely. Would the testimony of witness,
indefinite as il is in some respects. 50 far cor
roborate the uncle and aunt as 20 overcome
the positive testimony Of Mamie Horner
and as against all the evidence, to probably
produce different result
X IS not QUESTION whether he Court as
a Juror would have found es The jury did.
hut taking the verdict as found. and assufa-
ing as We must, that il was properly 50
found. until the contrary appears. would the
sTidence offered ard which could or should
be bead, probably prU.iuce a different re-
sQlt2 URder the rules of law that govern
Us, We think not, and hence the motion Is
overTEled and a new trial refused
To this ruling the desendants except and
pray bill may be sealesi-ana q bin IS now
sealed 10 the defendants
w.J.BAER.
70 Feb'y. 1850 P,J.
While Judge Baer wss delivering hisoPin-
ion the stiffness Of tie audience vas 50 pro-
found as to be painful. One could almost
hear his neighbar think, and Tie steady.
tiek, tick, tick. OF the bigclock,
sounded Ike the solemn toll Of loud
tongued funeral bell
As the Judge proRouncsd the last word OF
his opinion, which meant death TO the
awaiting prisoners. and scarce before the
sound Of his voice lad died away. the pro-
tracted quiet was broken by the scampering
OF the ladies present to the front door to
avoid hearing the dread sentence pronounc-
ed.
May it please your Honor, I ask leave to
fiie a motion FOR the inmediate sentencing
of the prisoners, said District Attorney
Biesecker
The Court--Let the motion befled.7
TO sE HANGED By rHE Srcz UNTIL DEsB.
The Court-~Haye yoa, Joseph Nicely,
anything to say Why the sentence Of lbs
law should not nov be pronounced upon
you
In response, the prisoner addressed arose
and said in clear and distinct tone OF voice,
Il would just simply say am not gailty.
Have you, David Nicely, any thing to say
why the sentence Of the law should not now
be pronounced upon you gr asked his Hon
or
The prisoner. without rising from his
seat, replied Sc have nothing 70 say
Joseph Nicely, stand up. said Judge
Baer. Continuing, he said '' The sentence
Of the law is that you, Joseph Nicely, be Ia
ken to the Jail Of Somerset county, whence
yon came, and there, within the walls Of the
said jail, OH such day and time as may be
by the Governor Of the Ccmm0u-
wealth. you be hanged by the neck until you
be dead. and may God have mercy upon
ycuI soul
While the awful sentence was being pro
nouneed the prisoner s,ocd upon bis fes,
win his head slightly bent forward. Not a
muscle Of his face twiiohed. His counte-
nance never charged expression. His nerves
Of steel stool him in good stead. He was
game. IS game, and win die game
David Nicely. stand up said his Honor.
and she miserable, doomei wretch raised
slowly from lis seat, placing his right hand
upon the table in front Of hirq.
The sentence ofthe law is, said Iudge
Baer, that yon David Nicely. be taken to the
jail of Somerset County whence you came,
andihere, within the walls OF thesaid jail, on
such day and time as may be appointed 6y
the Governor ofthe Commonwealth. you be
hanged BY the neck until dead. And may
God have mercy upon your soul.
The condemned man bore up bravely IN
Ter the terrible strain, and, resuming bis
,eat by bis brothers side they engaged IN
with their counsel