The record-union., 1894-08-15
SEVEN YEARS At SAN QUENTIN.
Judge Murphy's Sentence in the Case
of H. J. Palmer.
He Denies the Motion for New Trial
and Refuses Bail Pending
an Appeal.

The hearing of the motion for a new
trial in the case of 81. J. Palmer, con-
victed of manslaughter for the killing of
Charles w. Phleger, came up in the Su-
perior Court yesterday morning before
Judge J. E. Murphy of Del Norte.
Palmer was accompanied by his sister,
Mrs. Hettie Dunn, and his counsel, A. l.
Hart and A. ]. Bruner District Attorney
Ryan and Charles I. Jones Especial coun-
sci for the prosecution) were also in at
tendance.
Mr.. Bruner read the affidavit demand
ing new trial. and the various grounds
urged therefor. General Hart then read the
affidavit of James B. Sayre, one of the
Jurors who convicted Palmer, and who
says he was forced to vote for a verdict Of
guilty after having been subjected to
''abuse, ma.edictions, insinuations and
threats at the hands of A. j. Van Zandt
and some of the other jurors"
Mr.. Jones objected to the introduction
of the affidavit on the ground that Sayre,
as juror, could not attack his own ver-
dict-that must be done by someone else.
He then read an affidavit signed by l. j.
EIdred, A. J. Van Zandt, J. Popert. @. T.
Boyd, ]. NJ. Jackson, L. Gilkey, e.
TuIler and j. NJ. Overmeyer, members
of the jury which convicted Palmer, in
which they state that all the jurors, with
the exception of Sayre, seemed anxious
and willing to arrive at a just verdict,
but that Sayre refused to discuss with his
fellow-jurors the merits of the case or
the law, and remained stubborn and re-
fused to give any reason for voting as he
did. The jurors further state that Sayre
I,oft L. Il Ytrr or
wrong, he was going to vote mot guilty.
and stick to it,"
They also aliege that Van Zandt mot
addressing Sayre) said in low tone of
voice that it was strange man should
talk like Sayre and give no reason for 1t,
and that there must have been some
other reason for Sayre holding out for
acquittai.
Sayre replied. do you mean me?'
Van Zandt said he did not mention
Sayre's name, but if the shoe fitted him
he could wear it.
TO that Sayre replied that he was as
good a man as Van Zandt, and would
hold out as long.
The jurors also say that the affidavit of
Sayre that he was intimidated, abused,
frightened or threatened into voting for
manslaughter is absolutely false. They
also deny that Sayre, during the deliber-
ations Of the jury, displayed any fear or
trepidation. or that he appeared intimi-
dated.
After Mr.. Jones concluded the reading
of the affidavit, Mr.. Hart said the very
actions of Van Zandt in the jury-room, as
stated in his affidavit, showed improper
conduct on his part, and the affidayits of
the other jurors also showed that their
conduct was not what it should have
been: they did not deliberate as jurymen
should. Van Zandt was not justified in
SAVING that other f.
tributed Sayre's action in holding out Tor
acquittal.
ARGUMENT OF THE DEFENSE.
The defense then took up the grounds
for the motion for new trial. The first
point advanced was the allegation that
errors in law occurred during the trial.
Reference was made to the testimony of
Enoch Dole, who arrested Palmer after
the shooting at the preliminary examina-
tion. Counsel claimed that when Dole
failed to testify TO matters that he had
forgotten, the attorneys for the proSecu-
tiOn had no right to refresh his memory
by reading from the testimony given at
the preliminary examination. Dole had
testified at the examination that Palmer
made remark to him on the way to the
police station, but at the last trial had for
gotten what il was.
The prosecuting attorneys then, ac
cOrding to the transcript OF the testimony,
recalled the incident, which action, coun-
sci claimed, was improper.
Judge Murphy said he did not wish to
hear any further argument on that point.
as he was satisfied with his decision IN
allowing that mode of examining the
witness.
Attorney Hart then referred to the tes-
timony of witness named Leaman being
stricken out. Leanan was asked if
Palmer was intoxicated when he shot
Phleger, and what his opinion was of
Palmer'S condition OF mind at the time.
Judge Murphy had refused to allow the
attorneys for the defense to continue that
line of evidence on the ground that it was
not cross examination, and ordered that
part of the testimony stricken out. Hart
claimed that was also an error of the
court
Counsel further said that when Mrs.
Phleger was on the stand she was asked
how many children she had, and what
their ages were. She replied that she had
four children, and the oldest was six
years OF age The attorney claimed these
questions were Irrelevant and had no
bearing on the case, and were objected to
at the time. His objection was overruled
This procedure, Mr.. Hart claimed, was
to show that the children were fatherless,
and that Palmer was responsible for NJ rs.
Phleger being widow-an impression
that was made upon the minds of the
Jurors, and which should not have been
allowed.
In his reference to the points set forth
IN the affidavit for new trial counsel
said the testimony of number of wit
nesses at the first trial was introduced
from the records, and was read during
the second trial. Such testimony, he said,
was simply hearsay, and should not have
been admitted.
Mr.. Bruner referred to letters written
tNr-p alt hafO oft rrt,o rE-
and said that experts on insanity were
allowed to examine them and pass upon
Palmer's condition of mind. This also
was objected to by the attorneys for the
defense, and the Judge overruled the OBJ
lection.
With the affidavit of juror Sayre and
the allegation of errors in law, referred
to by Hart and Bruner, they claimed
that good showing was made whereby
the defendant should have new trial.
THE COURT READY TO ACT.
Before the attorneys for the prosecution
could prepare themselves in reply TO the
motion for new trial, Judge Murphy
spoke as follows:
Il do not care to hear any argument on
the part of the prosecution. l am ready
10 decide the motion for new trial.
The allegation of misconduct of the
jury being made by one juryman, and
denied by several others, is pres med to
be untrue. The presumption is that the
jurors performed their duties properly in
accordance with the oaths they took.
Juror Sayre could have appealed for the
protection of the court before the verdict
was rendered, but he answered when the
jurors were polled that manslaughter was
his verdict. Ii the juror believed in the
innocence of the defendant. and if he
was made of the right material, he would