Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1891-05-15

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to prove anything in the case, but TO
decide whether or not it was competent.
The point was an eminently fair one.
The Court said he thought the coun-
sci for the State was wrong in referring
10 a consultation at one side OF the Court
room. That consultation was with rel
erence TO excuSing witnesses and on
former ruling of the Court, and had not
the remotest bearing on the question.
He desired TO diSabuse Capt. DOvener's
mind. He then overruled the motion OF
the defense to exclude the jury. EXcep-
tion.
The defense then formally objected to
the question being answered, and then
Mr.. Howard withdrew the original ques-
ton, and asked:
Q.-Mrs. Baker, what did DR.. Baird
say about his being shot when he came
In the door? objection.
The Court-What is it? l sustain the
objection. Do you want 10 be heard?
Can'Uyou ask a simpler form OF question?
The State then changed the question
again:
O-What did DR.. Baird say?
Mr.. Sommerville-We object.
He then went on TO say that no mat
ter what DR.. Baird said, it was only
hear-say evidence, and was inadmissa-
BILE. The shooting was over, and the
parties had separated, and what DIR.
Baird had said could be but mere mar
rative of past event.
He then read from the syllabus and
opinion in the case in IL w. Va, Porter
V. Talbert, in which it was laid down
that a declaration with reference 10
completed transaction, although ever so
soon, was incompetent.
The COurt-Was this transaction com
pleted when DR.. Baird went in that
door?
Mr.. Sommerville-I think so, so far as
this defendant is concerned.
Capt. DOvener-Well, we think not.
Mr.. Sommerville-What was this
transaction? The firing Of one or more
shots?
He then went on to argue that any
thing occurring after the last shot was
fred was not properly part Of the mat
ter 70 be inquired into. The witness
had said she was inside the store, heard
two shots in rapid succession, and the
others ran out. She started slowly TO go
around paper rack, and as she ala so,
DR.. Baird came in the store. The witness
did not know where the other party was
AT that time, and whatever he said
occurred there. That made his state
ment a mere after-Statement- a mere
narrative Of what had occurred. 1t was
true DR.. Baird was still living, but that
made no difference. Suppose he had
lived six months. He thought the
vi
cisive point, and that matter was one
very clear.
The Court-SuppoSe he hadn't died?
Mr.. SOmmervile-It would have
changed the character Of the case, but
would not have changed the character
of this evidence. II DR.. Baird could
make a statement a minute after the
firing of the shots, ne could have made
IL a year after. There is absolutely no
dividing line. insist that when they
separated, the transaction was finished
one. III DIR. Baird could make state
ments after the shooting, why could not
Dr. Carlson If be could make them
minute after he could make them an
hour after, and if this evidence was ad-
mitted. then the other could be ad-
mitted also.
The Court-Would there be any other
grounds on which it would advisable?
Mr.. SOmmerville-I think not. L
think know TO what your Honor refers,
and I think it falls away outside the
line. That point has not been raised,
and | did not care TO refer TO 1t.
Mr.. Howard replied TO Mr.. Sommer-
VILE at considerable length, and said
the rule laid down by Mr.. SOmmerville
was not the rule, and he was ready TO
risk his interest in the case on that
nroposition. The declarations could
follow after an hour, day, week, or
month in some cases, but not in this
case. The only matter which
had disturbed the Court was, did time
enough elapSe TO enable a statement
to be concocted against the prisoner?
Had the shooting taken place at night,
and no one had seen it; if DR.. Baird had
lived long enough TO have studied out a
story laying the laying the crime on his
enemy, through malice, II would be dlf-
ferent, but in this case it was not so.
The act leaped over TO the declaration
I'm question. He said the leading case
on the pnint was that in an English
case, King V. BeddingtOn, where the
declaration was Of u woman coming out OF
a house with her throat cut, and giving
the name of q person doing 1t. MIR.
Howard made lengthy and ingenious
argument, and was followed by Capt.
Dovener In the course of his remarks
Capt. Dovener raised the additional
Doint that the evidence was admissible
upon grounds other than that it was
part OF the res jeStG, tO-wit, that 1t was
a diving declaration; to which Mr.. Som
merville objected, and said that the
Prosecuting Attorney had OBJ
iected To the evidence on one
ground, and the defense had been fight
ing on that line. Now, Capt. Dovener
came along with another ground. 1t
was not only unfair TO the defense, but
was "A most extraordinary proceeding,
To this Capt. DOvener replied he was
going In urge all grounds TO get in his
evidence, aud suggested that counsel
for the defense had better devote its
time 20 hunting up authorities, rather
than spend il in lecturing the State.
The defrnSe retOrted in kind. Mr..
Howard cited CrOOkem V. State, w.
Va. when FinnimOre said TO Ferguson:
"Charle> CruOkem is cutting me; he has
killed IN: for Gods sake run for the
doctor" aud said that case was directly
in line With the facts here presented,
and then Capt. Dovener went on with
his argument.