The Providence news. (Providence [R.I.]) 1891-1906, 1893-02-25

"A
Stiness were handed down by the Su-
preme Court this morning, denying the
petition Of Capt George N. Kenyon for a
new trial. Capt. Kenyon was convicted
OF killing John McInnis In Washington
county In November. 1891, the jury re.
turning a verdict Of manslaughter.
Kenyon's counsel, George j. West, petit
toned for a new trial, and the arguments
were heard before the Supreme Court on
the 14th inst. The opinion OF Judge
Stiness. which is a lengthy document,
disposes Of the defendants grounds sub
stantially rs follows:
The defendant, Capt. Kenyon. pc
titioned for new trial upon three
grounds: First, that the court erred in
It's rulings; secoud, that the verdict was
against the evidence; third, that one of
the jurors had formed and expressed an
opinion before the trial. The first error
alleged by the defendant Is the admission
of his wife, Susan &. Kenyon, to be
sworn as witness for the state, against
his objection.
The rule of common law in criminal
cases which made husband and wife in
competent as witnesses for or again st
each other, has been modified in most of
the states by statutes. In this state the
husband aud wife lare made com
-petent witnesses In civil cases,
with certain provisions. Section 40 OF
Public Statutes, chapter PA is as follows:
1.-The husband or wife OF any respond
himself or herself as witness, shall not
be excluded from testitying therein be-
cause he or she is the husband or wife of
such respondent"
An examination OF this section leaves
no room for doubt as to its meaning. The
husband or wife cannot be compelled to
be witness. There must be volun-
tary offer and upon such offer there can
be no exclusion from testifying because
of the relationship TO the respondent.
Under the statute the witness stands as
free from restriction as any other wit
ness.
The defendants exception to the re-
evidence that McInnis had made threats
to kill him within short time of the
homicide, Is given no weight, as from
kenyon's own testimony he shows no
ground whatever to apprehend the dan
ger which would justify him in shooting.
The danger in the wheel-pit, il any
there was, had passed; both had left the
mill and gone into the house. where the
defendant. secured from view, shot
McInuis. The verdict of manslaught ter
gave to the defendant all the benefit of
fear aud lack OF malice that could have
been given under the evidence offered.
The claim that one of the Jurors had
expressed an opinion the court did not
think is susl aimed by the evidence. The
petition for new trial is denied.
The EIwood Case.
The petition Of George A. Elwood, the
burglar for new trial. was denied and
dismissed in the Supreme Court this
morning.
Elwood was tried and convicted twice in
the Court of Common Pleas in this
county for burglary committed at the
residence of Charles Is. Humphrey on the
night OF August "a, 1891.
The circumstances of the case are we'll
known. Elwood was granted a second
trial upon exceptions, again convicted.
and sentence deferred upon notice of ex-
ceptious. These exceptions were heard
by the Supreme Court two weeks ago,
several grounds being taken by Elwood's
counsel, Edward l.. Cannon, for q new
trial.
The court says in its rescript that it
has carefully examined the numerous
exceptions taken by the defendant durin K
the trial Of the case, but finds nothing
therein which entities him to u new trial.
Only one Of the rulings complained of
deserves any mention.
Albert Holt, witness called by the
defendant. produced two diamonds,
which the defendants counsel said he
" ould like to submit to the jury. as they
very nearly corresponded to the dia-
monds presented by the state"
Said Holt was not an expert in dia-
monis, and the stones which he pro-
duced had not been shown to the wit
nesses for the state who had testified to
the identity OF those claimed 10 have
been stolen. The court refused to per-
init the stones so produced To 40 TO the
jury. aud the higher court fails to see
that this was in error.
IL the defendant wished TO discrenJt the
witnesses called by the state upon the
question of the Identification of the dia-
monds claimed to have been stolen. he
should test their knowledge by present
ing TO them the diamonds ciaimei TO be
similar. for their inspection when on th Q
witness stand. so as To have given them
an opportunity TO show by comparison,
whether they could really distinguish be-
tween those claimed by them to have
been stolen, aud those offered by the de-
fendaut.
The court thinks that TO allow articles
unconnected with the case produced In
this way, to 20 TO the jury for their In
spection would tend 70 confuse rather
than TO assist them in the de ternIiniation
Of the question at issue, rs it would be
apt TO induce them, after retiring To their
rCo 10, TO apply tests and conduct pro-
cess OF comparison upon facts not de-
rived from coupetent testimony. but
only discovered by themselves after the
evidence was all IA.
1he court cites authorities in support
OF It's rulings, aud denies aud dlsmisses
the petition.
Phebe A. Staples Recovered Too Heavy