The morning call., 1894-04-10
CONFLICT OF EVIDENCE IN CAP
ITAL CASES.

Few capital cases have ever been tried
in this State where the conflict of evidence
has been as great as in the Heath case in
Fresno County. A human life is staked
on testimony some Of which cannot posi-
bly, be true because it is in direct conflict
with other testimony. For instance, Mrs.
Palmer testifies that on the night that
McWhirter was killed she drove into town
with her husband. taking him TO the depot,
and that on that night in going through
one of the streets of that city she passed
buggy containing Terry and another man
driving at a furious pace. But the hus-
band, or ex-husband. appears and swears
that he was not driven into Fresno on that
night by Mrs. Palmer. If that were true,
then the story of meeting Terry and an
other in the buggy. and the other aud
straDgest incident of picking up mask or
burning handkerchief which had been
thrown from the buggy on fire. and which
had on it the initials of Heath. cannot be
true; and yet that. if true, would become
vital point. because it connected Heath
more closely with the taking off of Nc
Whirter than any other circumstance.
Then there is direct conflict of evil
dence as TO where the accused really was
at the time McWhirter was killed. Briefly
stated. the testimony is that he was in bed
at that hour and that he was not. There
is also the testimony as to the whereabouts
Of Harris and Terry on that night at the
time of the shooting. The effort has been
to connect one or both with the case, al
though neither of them is accused, nor
have they been formally accused. But
reputation is the next dearest thing to
life. Now both of these men swear that
they were in bed at Terry's house on that
night and at the time OF the shooting. and
that they knew nothing of the occurrence
until told of it the next morning. But
servant-girl Of Harris swears that Harris
occupied his own bed that night and took
his breakfast at home instead of at the
house of Terry. Then comes another
woman and swears that one or more teams
was driven up In the night to the house of
Harris and that there was loud talking and
hilarity. These statements cannot both
be true.
This conflict runs all through the testi-
mony in this case. On one side or the
other there must have been the rankest
kind of perjury. The several statements
cannot possibly be reconcled. No opinion
is here expressed as to the guilt or inno-
cence of the defendant, o- of any party
inciden tally involved in that tragedy. But
the danger of such testimony as has been
brought out In this trial is the one striking
circumstance. 1t cannot all be true. In
most capital cases there is more or less
false testimony. That has become so
common that it is expected. But there
never has been such a conflict as has been
developed in this case.
Two lines of evidence leading directly
to the accused are beyond the possibility
of any agreement. The incidents here
cited have bearing far beyond that par
ticular case. Perjury IS painfully fire.
quent in civil cases. judges and lawyers
know how frequently this crime is COM
mitted aud that in most cases it goes un-
punished. But if false witnesses are to
lead off in capital cases. then human life
itself will be at the caprice OF persons who
are the tools of conspiracy to defeat
justice. Whether perjury is brought to
bear for conviction or acquittal, the danger
to the community is the same.