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


elie-e adverse rahiic seasirseist, after having
sa<en .tss s.Esees II a 'Fsai-
The t2ra Rsasln assigns unwzFrzn.Al
sreciI IL srs1rnenf ollfsists thr evidxoce
~ 81 nlpfs,.,eriY lnsioencezl the j1ry.
Saeer tai- iz.a 4sslsisu-est- tisere are -ev-
- Formal sgsaaItsz1tlDns u iszd<sresSiisa
asa a rsse-silse 10 iuzay more exasistef 70
81 tie ci1se ef tha tzuilSsrs>sing So11sei !
s-eeca.
TIE eauazel ssr tae defendzafs, whether
fccn sasr us . lslfsszression et rites OF 9TH
- elase naYee tac gourt 70 ursser thai Il
{ aaz taa dafy q tie biSfgicE Attorney Il
{ maze ssa cl.ssiss lssgAet.t
IAs 1Hstfiei A.le1tiss waived bis right and
aaklsl 1isat as sLaa4a ep11sez might ssl5ss.
Tie gizas ~ 50 e85se WIS gr4alsl. via a
fo.nlzi ruling rsluIfing TIE assistant coan.
I 81 ~ eenane himself within The proper
! scope 81 tie District Attorneys lac was
bound by the szLls rules l. lie District Al
! torasy was.
Ii can't be denied the learned senior as
/ sislaal counsel. IL lis Zeal, exceedsd The le-
I gIrfHa@ie scope Of closing argument and
I went outside the svicSnce
The Courts attention. having been called
I 10 tie Obiectiousgie remarks, - prescrz5st
/ by eur rules. Il promptly reproved the trans
grsssyr snd caationec the jury not 20 be in
aesneed 5v any Of the remarks specially r.
( cifing tEe same3 which Il Was deemed were
/ unwarranted-
/ lristo be regretted that In sny case learn
I ed counsel should forget their position and
! indulge il extrayaga;iI speech and intemper-
! als zeal IN 4rgament. outside OF the evidence
and outside oi sucn matters as pay without
/ evidence be iudicially taken notice OF, TO the
prejudice OF al accused party. Notn ng is
I szir.eet thereby, 1or If i II nIade to appear
{ that injury resulted ;hesefrOn, q court would
{ promptly ses aside she verdict.
NJ matter h0H guilty man may be, or
I may be supposed 10 De, be Is entitled 20 3
/ far trial, and 1e must not 5e found guilty
except On the evidence ii the case.
Of course il would oe our duty 70 set aside
a verdict not fairly obtained and we would
certainly do 80 in SO important case as
this. notwithstanding We cautioned the jury
itit 10 any way appeared that the Language
used iniuriousgy affected the defendants.
Our knowledge Of the jurors is so fayoTa-
Die. that IN the absence uf anything made 10
apt-ar. We cannot believe that the jury were
preiudiced by the remarks made. The jury
was. u say the least, able and as well
qualified Il every way, u any that ever sal
IA this court
The conduct Of iearued counsel on cppo-
site sides was not toward each other wbst
we nuch desired and sought to bring about,
intefnperate zeal on the other.
To have held the counsel TO scope in ar
gument which the defense would have APP
proved, would haye been circumScribing the
scope of legitimate argument. With this
view Of the QUESTION We dismiss the l2th
reason
The sth reason Is that in going to or from
meal, a person, As tie jury passed along.
was heard by the tipstait v say, = taere goes
the Jury / Wish I could give them some
fointsrsn Il does not appear thai the jury
heard It. or that Il was III any way followed
on. and is in any event entirely too indef-
inie 10 impuen the conduct VI sworn
jury.
The 81 reason assigns error in rulings on
admissions ard rej-clioss Of evidence. Un
careful exani nation Of all the specihca-
lions Of error, aud the rulings o. each, We
7en,ain unconsinced OF error shat could
seriously affect the defendants, and hence
tins reason tails.
The arm reason assigns error in the charge,
under which are specifications, and the
lUth reason yned IS es 70 error ia re-
char-ins aud sending back tie jury, etc
We have carefully examined tie charge
and answers To points. and We remain IN
convinced OF ans material erTur, aud hence
overrule these reasons. TnIs brings Us 10
the 7th reason assigned, and the specliicA-
tions under il, alleging zftsr-discoVeTed esi-
ceuce. etc. and raising. a. We view Il, the
l,iaoatl question On tins motion.
Ine ursi question IN orcer is, what are the
rules OF law by which we are to De governed
when newiy-liisc0sered eyicenee IS offered
Erum ASH 4l--t9, W. * :. a5, Phiia-
49,. TC.I. N. r. rs and authorizes cited
in the note We take the rule 10 ne
1t, The testimony must have been dis
covered since tl1e former trial.
aiid. Tha. IT cUuid not have been obtained
ct the former trial with reasonable diligence
used 5y the defendants.
sfd lhar the testimony must not Re Mere
" cumulative and corrObOraiive of other tes-
tnony IN tie czSe-
sth. That the iestimoay must 60 70 the
merits OF the case. and must not be merely
Tor the purpose Ol impeaciling The ereeiloiiiiy
of witnesses
ssh, That the testimony MUS, De such as
viii Dr0baafg produce a different verdict II
new Euai s granted.
oh. a new trial VIII not be granted on the
GROUND Of neWiy-,ilscovered evidence, wEicn
does not relate TO nssr Jacts, but gots only 10
corr0hoTGte the testimony given on former
trial OF which consists Of cumulative facts
ur circumstances relative 10 The same matter
controsvried at the former trial.
7th. When the newly discovered testimo-
By comes within any one Of the objections
covered by the rule, II nIuss be REJECTED As
insufficient 70 warrant awarding new
trial
cumulative evidence IS defined to be ad-
dilional evidence 10 support the same point.
ard which Is Of the same character with eY-
dence already heard.
Tne rale i not uniform IN all the States
See I q. L. Il. r. ls5, and to Tie rule as we
hold il. there are excsfti0ns for Instance,
evidence merely cumulative, II Il have the
elect 70 render cioar and p0siftre that which
before Wiz egHi,scui anu Inconsistent viii
Justify granting new trial 10. Is
Sow, ia the Hght of these fundamental
principles which govern in determining the
motion. what IS the newly-ciscovered eyI-
dence and what lis probable ELECT
Though the court on the trial OF an ISSUE
Judges u the competency. and the jury Of the
elect OF the evidence, Yet on mOiIOn Tor
mew trial. where Bewiy-discovered evidence
Is produced, the court must TO some extent
Judge OF the probable efrSt il ii come with
10 tie rule.
The Isl and 2nd Specifications under the
7fh rfason. siiege that Eisa SIeArn made
statements materially different from her evi-
dence given On the trial. The Bird alleges
statement made by Ms. Umbereer, a to the
missing vi UmOerger's menoFaada OF
notes, etc.
The foarth alleges that the pocketbook
found at Nieeiy's was not the One in evil
dence on the trial.
The 9th that Losta Nicely saw Der aunt
patch David Nie.iy's coat line evening utter
the robbery ard homicide
Sheriff McMiilens testimony Is in sub
stance thar Ella Siearn, on the 3rd OF March.
described one OF the ROBBERS As q tail, red
faced man. with cap and dark gray OvercOat
on. and having handkercilirfs over mouth
amt head. The other. or SMALLER one. ss
wearing DARK bs0sga derby hat sritA a hote "a
the cToiea. and that the inscription IL Tie
HERALp was substantially a. he heard X.
On cross- examination he says my it1pres
sion Is she Said hole in the crown OF the
hat bat | would net Ike 10 swear It posi-
lively.
Or. Walker. who was witness for The
COMMONS eal.a AZ tie trial, and vas called
by the defense. SAYS he heard Ella Stearn
say one Was = rsd-faee,l man anu one had
a DERBY hat on sHd that there was hole ia
t,e hat but says :. b. is not certain what
size SAID a5oat the mole ia the hat, but says
q my recollection j. she SAID il was in the
crown. Both al the trial and a. the hearing
at chambers on hGtesis corpus Ella Siearn
said thar the tall man had tTO red l.andser
ehief. with white srOts, over his face and
ufslu, ahd tlat slf tenits So Ms hpSc, tff-~.
forehead and cheeks about the eyes. and de-
nied that she said he was reti-faeed man.
As 10 the hat. she said the smaller one
wore g brown derby hat with hole out Of
the rim"
Mamie Homer said substantially ;hesame
al the trial The District Attorney. who was
at Uuberger's home when the Sheriff was
there, says Mrs. UmbergeT in the presence
ofEila Siezrn, said the hole was in the trauD
rim Of the hat and that he furnished the sc-
count which appeared in the HEgsID to the
editor III a verbal statement, bat had told
him tba g,aia ,u.s -, tho r;u, ar.d NOT tI,a I