Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1890-06-07
DOOMED TO HANG,
UNLESS SOME HIGHER POWER INTER.
vENEs IN HIS BEHALF.
Charles Freeman's Motion for a New
Trial Denied, and the Death Sem
tence Finally Pronounced,

yesterday morning by spectators drawn
thither by the expectant action of the
Court in passing sentence on Charles Free
man, under conviction of the murder Of
Mark Feeney in March last Last week the
defendants counsel. Messrs C. n. Post and
@. 7. Jones, submitted afidayits (which
were published at length in the RECORD.
UNION in support of their motion for 9
new trial, and the Court was first to pass
upon that question.
The prisoner was in Court, attended BY
Mr.. Post, and his confinement and the
anxiety and worry that he had undergone
since the trial had worked a decided
change in his demeanor He was pale
and nervous, and exhibited little of thai
surprising nerve that characterized his de
meanor even when the verdict of guilty
was pronounced by the jury.
In reviewing the contents of the aft.
davis referred to, Judge Van Fleet said
The defendants motion for new trial in this
case, as presented at the argument is based upou
two general grounds:
First-Errors of law committed at the trial
and,
Secondly-Newly discovered evidence mate.
rial to the defendant and which he could not
with reasonable diligence have produced at the
trial.
The only point suggested under the first
ground. was an error alleged to have been com
mitted by the Court during the examination of
Jurors, in refusing to allow question TO Juror
under examination, which it is claimed should
have been permitted. This point ruled adj
yersely to the defendant at the conclusion OF
the argument, for the reasons then given The
hat of H. =, -
dence. being necessarily based upon atfidayits
which required examination. have taken oc-
casion, by reason OF the vital Importance to the
defendant, to carefully examine not only as to
the substance OF the afiidavlts themselves but as
TO the law bearing upon the questions involved
Among the affdavits is one by the defendant
himself III which it is Sc; forth that if granted
new tIia! herein he will be able TO show
by large number of witnesses whose afi.
davis are also presented and among whom
are the mother and sister of the defend
ant IN substance that they have known
the defendant for number of wears
last past; that since the age of 10 wears
he has been subject to fits. rush OF blood to the
head and severe pains in the head; that when
so troubled he becomes unable to control his
actions or 10 remember anything he does; that
when under the influence of liquor he becomes
dangerous man, crazy and irresponsb that
his grandfather was troubled the same WAY
and once attempted suicide; that two of his
cousins became insane and died with fits; that
the defendant on the night of Mark Feeuey's
death was drinking heavily and was badly in
toxicated at O clock at night when last seen
by the witnesses; that he did not know prior to
his trial OF many OF these facts, nor of the fact
of insanity in his family, nor did he know that
such facts were material to his defense and he
never informed his attorney of the existence OF
the same or his ability to prove them, and only
learned of the existence of many facts since his
trial from his mother and sister.
This afhdaylt of the defendant is followed BY
the aitidavils OF his mother and sister and the
other witnesses named therein, tending gener-
ally TO support the defendants statements
Admitting the materiality of this evidence, if
produced at defendants tiial, the first question
that arises is whether there appears from the
afi1davits such showing as would enable this
Court to say that a case mas been made out
which should entitle the defendant to new
trial herein.
motion for a new trial upon the ground of
newly-discovered evidence has always been r.
garded by the Counts with great deal of suspi-
cion and disfavor.
1t has been said that "the temptations are so
stroag TO make a favorable showing after a de-
feat IN an angry and bitter controversy, and the
Circumstance that the testimony has lust been
discovered when il is too late to Introduce il is
SO suspic Gus that Courts require the very strict
est showing of diligence"
In one case it was said by Justice Sanderson
that applications for new trials upon the
ground OF newly discovered evidence must be
looked upon with suspicion and disfayor be-
cause the temptation TO make a favorable show.
ing after having sustained defeat is great A
party who relies upon that ground must make a
strong case both III respect to diligence on his
part IN preparing for the trial, and as to the
truth and materially of the newly discovered
evidence, and that, too by the best evidence
that can be obtained II he fails in either re-
spect his motion must be denied"
The law requires at the hands of the defend
ant that he make careful and dilgent prepara-
ton for his trial; and it is to be presumed more
especially in case OF the importance of this
involving the life and liberty of the defend
ant-thst in preparing for trial he should go
over very carefully and diligently with his at
torney every fact and circumstance which
might in any way bear upon his defense
Looking at the character ofthe showing made
by these afhdayiis, 1t is inconceivable to my
mind that these facts which are now relied
upon as newly discovered evidence should not
have been known to the defendant and called
to the attention of the attorney in making pre-
paration for the defense.
IL is true that the defendant states that MANY
OF the facts set forth in his affidavit were un.
known to him until after his trial. but this
statement becomes absolutely unworthy of Gre
dence IN view OF the fact that in large part the
OF necessity have been within his personal
knowledge.
1t is not to be believed that the defendant
could have suffered, as stated in his aft
davit, at various times. during his life
from TITS and trouble and pains in the head and
the loss OF memory as to material things &C.
curing during his life, and not have a personal
tied that party who has been addicted TO the
use OF strong drink can Re entirely unaware as
to the effect upon his physical and mental being
The defendant shows By his own statements
and 1t appeared in evidence at the trial of this
case. that he had been drinking considerably
on the day on which deceased met his death
The calling of the fact to the attention of his
counsel, to my mind. should necessarily have
led 70 an investigation by the attorney, which
would have resulted in elicitipg all the facts
which are now relief upon by the defendant as
newly discovered evidence.
Furthermore, 1t appears by the afidavits of
the mother and the sister of the defendant that
ltd
upon by the defendant as new evidence were
known to them before the occurrence of the
facts out OF which this case arose
And II appears from the counter affidayits
filed by the District Attorney that this sister and
the mother of the defendant were in daily COM
municstion and consultation with the defend
ant from the time OF his arrest up to the time
OF his trial, and that throughout the entire nine
days trial which resulted in the defendants
conviction they sat beside him in the Court
room aud consulted and advised, not only with
the defendant, but with his attorney.
The sister states in her affidavit that she saw
the defendant on the afternoon OF the day in
under the influence OF liquor, and, know
ing as she did the tendency of his
mind and disposition when in liquor, it is
almost incredible TO believe that she should
have neglected to inform his counsel of that
fact while preparation was being made for his
defense And am bound to assume, taking all
attorney OF the defendant by an exercise of
reasonable care and inquiry OF the defendant
ana those SO intimately connected with him
could have ascertained all these facts in time to
employ them in the defendants behalf at the
trial Nor can the defendant be excused or re-
neved in any way from the fact that he NAV
have been ignorant of the law or of the rules OF
evidence which would make these facts mate
rial.
A party is bound to know the msteriality OF
his evidence. and ignorance of the law does not
excuse.
Whether or not he was sufficiently acquainted
with the law to know of their materiality, It was
his duty to have communicated them to his
counsel.
After careful consideration of the showing
made by these affdsvits, when viewed In CON.
necton with the facts and circumstances ap,
pearing at the trial, am entirely unable to
come to the conclusion either that the evidence
set forth was newly discovered or that it could