The Somerset herald. [volume] (Somerset, Pa.) 1870-1936, 1891-06-17
III w.me..r. IN the .a.e were d..e.a-a.I

tr!rt a Attorney Dr ordered ana oiittitl 20
make The closing Argument ia the ease on
the tart Of the Commonwealth. Genera.
CoHr1th al lresSel the Court on this q1as-
lion and gave illeir reasons for making this
somewhat extraordinary application. Dis
irict Attorney B.escCker, sad lac had been
in close Attendance upon the court for
tie mast two weeks and was sick and worn
ont. His appearance, as lac addressed the
court showed clearly that IL would be
physical implssibility for him to make any
uro;ractcd effort or argument. While the
counsel for the prisoners disclaimed that
such was their desire or intention, the re-
suit of favorable rnling on their motion
on the part Of the Court would hare been 10
prevent the Grand Old Man. Hon. John
Cessna from arguing the case or going 10 the
Jury, as il had been agreed before the morn
ing adjournment that there should only be
two speeches on each side. The Court over
ruled the motion aud Mr.. Cessna will make
the closing argument.
Following is the motion made
Commonwealth
vs.. No. ,, May Term,
Joseph Nicely 1859, oyer and
and Termuer.
David Nicely. Murder.
And now to-wit: June 9Th, lSoy. the evi-
dence having been heard and the points of
the counsel having been submitted to the
Court, counsel for the defendants moved the
Court to order and direct that the closing
argument to the jury on behalf Of the Com
monwealth be made by the District Attor-
ney.
WM. II. kOoNTZ,
CoFFRoTH ( BUPPEL.
The Court rules as follows
The District Attorney valves his right TO
closing, on account Of findisposition. Whilst
calling 70 his assistance private counsel the
District Attorney acts as quasi judicial ofh
Ger. and under the law they act under his
direction lie has an undoubted right un
der the law to make the closing argument
and there is no law preventing his yielding
this right 70 private counsel but the private
counsel representing him in the closing ar
gument must be bound by the same rules as
g,rtsi judicial officer, and as such can press
for conviction as far. but no further than the
District Attorney. 81 far as bis duties in ar
guing are concerned, they must be in con-
f1rmity with the law. and his argument
should be a fair illustration Of the theory
propounded in the opening speech in, am
swer to the arguments of tine defense and
not something new that the defense may be
depried from answering. This is the rule
that applies to the District Attorney and mus,
also apply to private counsel employed in
the case.
Mr..Kooser then went to the jury on
behalf Of the Commonwealth.
SYNOPSIS or Mr.. KoosEE's SPEECH
Mr.. Kooser began by congatulating
the jurors and himself that the iabors Of
several weeks were drawing to close
vet he must ask the jury TO indulge him
and others patiently awhile longer con-
graduated the defense and the common
wealth that they had succeeded in secur-
ing twelve jurors Of high degree Of in /
OF undoubted courage, who
would be able to render a verdict under
the evidence and charge of the Court. /
he agreed with the counsel for de- .
fensc in his opening. when ne stat F.
Ell ii was .an important trial-perhaps tine
most important ever tried in the county I.
that the name of Umberger was now .
known all over the land, because Of the /
peculiar brutality of the murder, and the .
magnitude of the sum of money secured .
by the murderers and robbers; that I
while their duties We're grave and re- /
sponsible they would ever recollect their !
with this historical case He /
read the statute regulating the degrees of |
conceded the position taken by .
the counsel for the defense that the .
burden of the proof was on the Common /
wealth throughout the trial, and that the I
defendants must be acquitted if there /
was reasonable doubt of their guilt; !
defined what was meant bya reasonable /
doubt and claimed that the force of the I
expression laid on the word redsgnaJleI
a doubt with reason behind it. He
then adverted to the testimony began
by picturing the peaceful scenes at the
house on the twenty seventh of
February; farmer Umberger, old
and sick, with the accumulations of
a lifetime, some Sl5.OJ) or $4,000 in his
house; with his wife aud grand child
and servant gathered around the even
ing lamp no thonght Of the assassin
that lurked about; he then shifted the
scene to LigOnier. Hamilton Smith a
witness. saw David Nicely wearinga gray
overcoat and cap vending his way East
ward beyond the point at which he
should have turned off to get TO his
home found him next upon the noun
tain where he is identified by witnesses
Beener and McCracken who first saw
some other party cross the road and pass
nto the woods; these witnesses say It
was David Nicely ; further they pass
I'd Charles and Lewis Vaneer who
hot h ,,-.II ,,,- . l..