, 1891-12-02
CROSBY'S MURDER.
NEW EVIDENCE BY RESIDENTS OF.
TUMWATER.
Stowe, the Convicted Murderer, is
Granted a New TrhaE-Incf-
dents lin the Case.


[Notice-All decisions of the supreme
court will appear in The DAILY AND
WEEKLY TRIBUNE.
State Of Washington, respondent, VS..
George Stowe, appellant.
Between 10 and II o'clock on the evening
of the 9th of October, 1889, Enoch Crosby,
an lnotfensive and respected citizen of the
city OF Tacoma, was shot down i'll cold
blood In the public streets of that city.
The victim of this murderous and fatal as
sault lived long enough to give briefac
count ofthe murder. His statement was that
he hadsbeen down to the depot to see some
friends, and on returning home, while
walking quietly along G street, two men
stasted out from the side ofthe barn which
tronted on the street, and when within five
or six feet from him, without making any
demands or giving any warning, shot him
through the body with a revolver, That
one OF them went in one direction and the
other in an opposite direction.
The motive for this dastardIy CRIME was
never disclosed, as the victim when asked
II they had robbed him, had become so ex-
hausted that he could not answer This
crime was committed on Saturday. On the
next Wednesday, the 9th of October, the
appellant was arrested on suspicion of hav-
ing committed the crime and day or two
later one Hoyt was also arrested, and there
was joint Information filed against
them, charging them in due form
OF law with Crosby's murder. We
have no record of the trial of Hoyt, but
appellant was convicted of murder in the
second degree, and sentenced to imp1ison-
ment in the penitentiary for twenty years,
and appeals to this court assigning as
error: First, that the information laws
were not applicable to this state, and that
the defendant was entitled to an indict-
ment by the grand jury, the crime having
been alleged to have been committed be-
fore the admission Of Washington into the
union Of states, and before the constitu-
ton went into force and effect; Second
that the evidence does not warrant the YER
diet; and, Third, that new trial should
have been granted on the ground of newly
discovered evidence.
The first assignment, though urged at
length from the brief, was not relied upon
at the trial, as that question had lately
been settled adversely to appellants con
tention in Lybarger VS.. State. With the
view this court entertains as to the third
assignment of error it will not be necessary
to discuss the second.
1t was claimed by the appellant that he
was in the town of Tumwater, a village be-
tween thirty and forty miles from Tacoma
dered, pursuing the vocation Of an itine-
rant tinker, or mender of tinware. That
he was there from Saturday to Sunday
morning. And different citizens Of Tum-
water sWore that they saw him there
during the day; and witness Tice, who
keeps the hotel at TumWater, swore
that he stayed in his house on that Satur-
day night, October 5th; that he woke him
up to breakfas4 the next morning, Sunday,
and that he ate breakfast there. 1t seems
there was no register kept at Tice's hotel.
After the trial and within the time allowed
lowed by law, appellant moved the court
for new trial on the ground that of newly
discovered evidence, which motion was
oyerruled The newly discovered evidence
on which appellant based his application
tor anew trial was the affidavit Of Martha
E. Eddy, who swore that the defendant
came to her house in Tumwater, between
the hours of Il o'clock am. and ppm. On
a certain Saturday in October, 1889. after
the commencement of the district school
in TumWater; that requested work at
mending tinWare, and indicated that he
was deaf and dumb. This was followed by
the affidavit of George Gelbach, clerk Of
the Tumwater school district, who sWore
that the term of school for that wear begun
September Both. And inasmuch as the de-
tendant was arrested on the 9th of Octo-
Der, and was confined in Jail at Tacoma
during the rest of the month Of October,
it must necessarily follow that if Mrs. Eddy
II must
have been the first Saturday, or October
5th. There is also the affidavit of Clark
Biles, resident of Tumwater, who swore
that he was a resident of Tumwater school
district, and that on the first SATURDAY. Of
the school term for the year 1889 he saw
the defendant, deaf and dumb tinker, on
mender Of tinware in the town of Tumwa-
ter, between 2 and 3 pm. of said day 1t NAV
be stated in this connection that the aft
davits show that the defendant was IN the
habit of imposing himself upon the com.
munities where he piled his trade, as a
deaf and dumb man. claiming that he
could get more work by reason Of such
supposed affections. Respondent stoutly
insists that this showing was not sufficient
and cites many cases which announce the
doctrine that applications for new trial
oh the ground ofneWly discovered evidence
are regarded with distrust and disfayor
and that courts require the very strictest
showing OF diligence, and all the other
facts necessary to give effect to the claim
The rule laid down by Hayne on New
Trial and Appeal, Sec. 88, is as follows
First, that the evidence, and not merely
its materiality, be newly discovered
second, that the evidence be not cumu
such as to render different result
probable on a retrial of the cause
fourth, that the party could moi
with reasonable diligence have discovered
and produced it at the trials and, fifth
that these factt be shown by the best eyi
dence of which the case admits"
The code, however, Sec, HOS, simplifies
the requirement, and makes the new tria
admissible for "newly discovered evidence
material for the party making the applica
ton, which he could not with reasonable