Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1890-03-13

and the sovernneas presents . strong CASE
upon that point Tbs evidence V over
powering, and cfushes the theory Of sui
eide.
Another branch Of the defense relied
upon in answer to the evids ns' on the psrs
Of the gevernmer :. 10 the alleged aistt
For i, 10 admitted by the defense, that If
the prison RS were ia Dexter on the day OF
Barrou's ceA b. the inference of sheis guilt
cannot be resisted: but il 10 conteuded that
they we're II their homes in Massachusetts
On that day. And no pains have been
spared ia attem pting to establish the pres
ence OF both Stain and Cromwell in Med
held Oh the ed day Of February, 1878
Both we're Witnesses, and each endeavors
to accoua; for himself or that day. In
fortunately for Cromwell he is not able to
az npoa any individual besides his wife
whom be saw that day. Ii 10 upon this
branch Of the defense that the great bu
Of the alleged newly discovered evidence
has been introduced since the trial, and IN
support Of the motion. Here we meet
Q very different class Of Witnesses. and the
great majority Of them, il We are to judge
nyshing by their testimony, are deeply
interested in the result of the case, and
many of them friends and associates Of the
prisoners, without much character or po-
sition, Who seem to be willing to do any
thing within their power in their behalf
This testimony We have examined with
great care, aud while 1t might be somewhat
Interesting to analyse it for the purpose
Of showing it, numerous discrepancies and
nsistencies, it would not be advanta
geou. or practicable 90 to do within the
limits Of this opinion.
As regards the testimony introduced by
the defense to how the prisoners in Med
field on that day, il need only be said that
shen carefully analysed, it is 80 consrsdic
tory In itself. and 90 entirely overcome BY
the testimony on the part of the government
that il can have no moral or legal weigh.
in sustaining the molioa for new trial. T.
10 contradictory a. between the witnesses
On the ssme sida,-,t is contradictory to
Stain himself who lacks neither in power
of memory n u ability of narration. aud who
it may properly be assumed, ought to know
more of his Whereabouts on that day than
anyone else. The testimony in the defense
upon this question Of atiN shows affirma
lively an absence of the prisoners from
Medheld upon the day of this tragedy.
The government conclusively establishes
their presence in Maine. The fact that
Hamant's horse was stolen in Medfield
on the night of February 81, 1873, has been
put forward ~ circumstance to enable
persons to remember seeing Stain upon the
day following But that circumstance, as
shown by the gov, rnment not only upon
cross exam nation but by independent wit
nesses, was potent factor in establis ling
the fact most cOnclusively that the prison
ers were absent from that town at the
time, and that they were not suspected of
the theft because of their absence.
There 10 not witness Who sweafs that
Stain or Cromwell was seen upon the street
in Medfeld on the 22d day Of February
1878, when the excitement was rife and
search vas being made for the discovery of
the stolen horse. Not witness for the de-
fense was engaged in the search. Nor did
they hear of any suspicion being cast upon
Stain of stealing the horse. But five Wit
nesses, among whom was the secretary and
one Of the directors in the Medical Thief
Detective Association and active in the in
vestigstion, testify positively that Stain was
not in the search nor seen by them during
the Gay. although Stain himself claims to
have taken part in the search. and men,
tons seeing one Of these witnesses. They
further testify that upon inquiry S:ain was
found TO be away from home. While the
motion alleges that the defense will show
that Stain was suspected Of being guilty OF
stealing the horse, and that public attention
was turned 10 him on the 22d, on that &C
count, the evidence introduced shows no
such facts. but, on the contrary, the oppo-
site is shown,-that suspicion did not attach
to him, and for the reasons before stated.
The only witnesses introduced under the
mott IN and who claim to have seen Stain
At his house on the day in question. are
contrsdicted by Stain himself, by other
Witnesses, and by circumstances. The de-
Tense, in its attempt to prove that Stain
was in NedHeld, has failed to succee
while the government, In the new evidence
has succeeded in proving the exact con-
frsry. II 10 unnecessary to attempt to
summarize the evidence upon this point
Upon these questions of fact the court can
only state conclusions to which it has
arrived, and which are fully supported by
the evidence. 70 attempt more than thai
would require the introduction Of 90 much
of the record, that any opinion would be
it'll more than full and detailed state
ment Of the evidence.
We have now considered the different
phases of the case ~ presented BY the
government, and the several positions At.
sumed by the defense.
The question whether = new trial shall
I be granted. having been once passed upon
by the tribunal whose duty 1t was to heal
and decide the matter in the fret instance,
1t now becomes the duty Of this court in
its fnal determination carefully to weigh
and consider the question thus presented.
Thi. We have done. We have carefully
taken into view, not only the great MAST
Of testimony. but all the circumstances OF
the case, with % favorable . consideration
for the prisoners - may be consistent with
. due regard to the rights OF the public
and sound principles of justice. From no
standpoint on which we have been able to
view the evidence before US, whether it be
that given ct the trial, or in connection
with that subsequently produced in sup
port of the motion, are We satisfied that q
new trial should be granted.
In regard to the supervisory power OF
the court over verdicts, and in relation to
the granting Of new trials, the uniform and
unquestioned practice in this country has
been. with 4 very few exceptions to be
fou II in the earlier cases, to extend to
criminal cases the same principles which
are applicable to civil actions. In the ap-
plica,ion Of that rule to the present case,
upon the evidence submitted to the jury.
no suf1cient grounds are shown whereby the
verdict should not be permitted to stand.
But the principal reliance Of the defense
is based upon what 10 claimed to be the
newly discovered evidence in the case
Notwithstanding the discretion OF the
court in such cases 10 very broad, and will
be exercised by the court in granting .
new trial whenever . proper case 10 pre-
sented. yet there are we'll settled rules by
which the court in this a. in all other cases
should be governed. In order to warrant
. new trial upon the ground of newly dis
covered evidence, it should be made to
appear that injustice 10 likely to be done
by refusing 1t. and therefore It becomes
necessary for the cour, to take into consid-
Grafton the weight and importance of
the new evidence, its bearing in come ction
with the evidence on the former trial, ADD
even the credibility Of witnesses. And this
rule 10 applicable not only to civil but
criminal cases. Ordsy Haynes. ~ n.
H. 10; State .. Carr. 81 N. Il. l66. 1859,
IFS; Parker .. Hardy. ~ Pick. 946; .
wars. Grim. Law. SsoSl. An eminent
English Judge. noted for his learning and
wisdom has said: such applications
should be cantiously admitted. % IL would
be great inlet Of perjury" Vernon ..
Hasksy. : r. r. 80.
And il u well-eseablished rule that .
motion for . new trial should not be grant
ed on the ground Of newly discovered evil
dencs unless the evidence 10 such 40 ought