Evening star. [volume] (Washington, D.C.) 1854-1972, 1891-03-26


NIssfsLITr-THr JuDeE FINALLY DECIDES TO
ALLOW ITS INTRODUCTION.
This afternoon in the kincaid trial Nr. VIII
son said that the defense wanted time to sub
init counter testimony to that offered BY the
government concerning Tsulbee's condition
when he made his dying declaration.
Mr.. Cole az once objected saving that he
had no objection to the time being allowed IL
the defense had right 60 il, but that he did
no; think they had the right.
The court sustained the objection
Mr.. Wilson then made the formal request OF
the court
The court asked IL Judge Wilson knew OF any
case where such testimony admitted.
Mr.. Wilson thought he could cite the admis-
sion of similar testimony. though perhaps rot
in case Of dying declarntions.
The court refused to admit that sort of testI-
mony, declaring that TO do 20 would be subver-
sive OF all the rules OF practice in such cases
Judge Wilson said that he merely wanted the
ruling of the court and the exception to 90 on
the record. He said that he wanted TO put MIR.
Simons. to whom the last witness had
referred. on the stand to prove that Mr. Taul-
bee. after the time this dying declaration was
made, expressed hope Of recovery.
THE REQUEST RErusKp.
The court declined to permit the testimony
and asked If Judge Wilson thought that the
dying de laration would be affected by the
fact that the dying man afterward expressed
hope of recovery.
Judge Wilson said he certainlyd did
Mr. Cole then proposed to take testimony as
to the dying declaration. Judge Wilson and
Mr.. Grosvenor objected. stating that IL the
statement was in writing il would declare its
own contents.
NOT SIGNED By THE DYING MAN.
Mr. Cole said that it was not in writing-that
is. that it was not signed by the diving man-it
was merely notes taken down by the witness.
Mr., Cole cited authority on the subject OF
diving declarations and urged the admissabiity
of the statement sought to be submitted as a
dying statement
The court called the district attorneys atten-
ton to the fact that the evidence submitted had
not disclosed the circumstances surrounding
the making of the statement.
Mr.. Grosvenor urged that TO lie a diving
declaration. the statements mnst have been
made by the man under the impression that he
was then dying: not that he would die at some
time in the future. having time meanwhile for
repentance after making the statement En-
glish authority sustaining this view was cited.
Mr.. Cole antagonized this theory of
t tion qon He held tina. dying ne des Seei
of impending death was sufficient
without the dying man, necessarily be-
lieving that he was at that moment in dying
condition.
Judge Wilson contended that a diving decla-
ration must be made under the very shadow Of
death.
DIR. Taulbee was asked by the court il his
brother was under the impression that he could
not recover when he made the declarations.
Witness said that the wounded man
believed when he made the statement
that he would die; that he could
not recover. Witness had told him
that he could not recover, but had not told him
how long he might live.
THE STATEMENT ADMITTED.
The court then decided to admit the state
ment as a dying declaration.