The morning call., 1895-02-15
ASSISTANT DISTRICT ATTORNEY
PEIXOTTO OPENS FOR THE
PEOPLE.
REVIEW OF THE EVIDENCE.
LIVERNASH Is BRILLIANT IN HIS
TALK TO SUPPORT THE IN
SANITY DEFENSE.

|
on argument, and if the predictions of
counsel are at all accurate it will so to- the
! jury before this evening.
The proceedings opened yesterday morn
ing with DR.. w. H. Mays, the insanity ex-
pert, upon the stand for cross-examina-
ton by the defense. DR.. Mays had testi-
fled that he believed Mcdonald sane, and
for the greater portion Of the morning Mr..
Livernash bent his energies toward max
ing the doctor reverse his decision. Dur
ing the examination counsel for the de-
| Tense and the court came to sharp words
as to how far the cross-examination should
proceed, but when all was finished DR..
Mays was still of the opinion that the
defendant was not insane.
E. H. Tharp, the last witness, said he
did not remember being in the Pacific
Bank on January Is, 1893, but he had
documentary evidence which made him
sure that he had been there. He had
piece of commercial paper which he had
protested, and it indicated that he had
been to the bank twice on that day, once
when he received the note and once when
he returned it. He had another note
which he protested and which after he had
received it on January II he had returned
on the 18th. The date would show that
| he returned this note to the bank IN the
forenoon of the 18th. He presumed he got
the other note at the bank on the 18th and
returned it on the same date. OF this he
was morally certain. In matters of this
| sort he dealt with the note-teller or at the
colection-desk. He would return them to
! the one from whom he had received them.
In taking Acknowledgements or atfidavits
from the bank officials he transacted his
business in the "back" office where no one
could see what was done.
| On cross-examination he stated that pro-
tested paper was never brought to him by
people from the bank. If he could not go
| himself he sent some one from his own
office. AS rule he went TO the bank
every day after banking hours to see if
there was any paper for protest there.
One of the Jurors then asked if it was the
! habit of the witness to atfiX his seal to i'm
portant papers without the person making
the affidavit appearing before him. He
said such was not his habit, and then on
further questioning by the juror he said
| he had no recollection OF the statement OF
the bank upon which the case is based.
This closed the case for the people and
Judge Murphy Immediately ordered the
arguments to proceed.
c.. D. Peixotto, Assistant District Attor-
ney, who has been associated with Mr..
| Barnes during the entire trial, opened for
the prosecution.
After stating the position of the prosecu-
ton in the case, Mr.. PieXotto took up the
evidence. He dealt first with the question
whether or not an oath had been admins
tered in the case at bar. The law, he said,
had relaxed in great measure the
solemnities and formalities which once
surrounded legal forms, and at present all
that is demanded is that he who signs an
attested statement, or a statement to be
atteSted, intends to make affirmation to
the document and realizes fully that he is
! swearing to its truth.
Jenkins and his testimony then came in
for scoring, for Mr.. Piexotto considered
him thoroughly unreliable. He referred
to his well remembered run to the notary's
| with the bank statement and remarked
upon the fact that he remembered only
this particular trip although he had made
many of which he had no recollection.
He scored Dorm also pretty thoroughly
and handled the transactions of the big
checks very roughly. AS to the insanity
portion of the defense, he said that in
sanity which would allow a man to dis
! tinguish clearly between right and wrong
was not the insanity which will extenuate
| crime. An honest man, he contended,
would not commit crime under any cir
! cumstances; man must be criminal to
take to criminality, even if he be of I'M
| sound mind, but still not maniac
Peixotto finished his argument about half
past 2 in the afternoon, and Livernash
| followed him at once. As young man,
he explained in his opening words he felt
! keenly the gravity of the situation, realiz-
ing as he did that the future destiny of the
defendant depended in part upon his words,
and that he might omit some statements
| which, if said, might tend to strengthen
the defendants cause. He referred to the
imputations which had been cast upon his
client, his associate and himself, regarding
| = - .,,,-,, I IL
were false in every particular. He appealed
to the Jurors not as body of men en-
throned in an impregnable position of
merely legal existence, but addressed them
as average men, who thought and believed
and Judged as their fellow-men were ac-
customed to judge.
He then took up Mr.. Piexotto's words.
"The insanity defense is the last resort of
the guilty man" 1t is often, he said, the
only resort of the innocent man to lay bare
the faults and foibles, the eccentricities
and petty quarrels of his private life. and
too often this is looked upon as mere
subterfuge to escape responsibility for
wrong acts. The difficulty of judging the
various and peculiar phases of insanity
was commented upon, and the jury was
requested to remember such to be the fact
and to Judge all the more carefully because
of it. The acts of the defendant, he be-
lieved made him more the subject for pity
| than for severe ana bitter condemnation,
and in support of his position he briefly
reviewed McDonald's history once more as
given by the witnesses. He referred to his
various ancestors on both sides, and showed
how many of them had been mentally &C.
centric, if not absolutely insane.
at was a crime,' he said, ga crime
against the unfortunate children to be
born, that such marriage as that of DIR.
Mcdonald and his wife had taken place.
She was the last person in the world DR..
| Mcdonald should have married, as she
came of family afflicted with insanity for
several generations. She should not have
married him, because in his family, too,
| insanity had shown itself in numerous
| instances; and the birth of the defendant,
instead of his training, being such as to
eradicate the curse of his ancestry, it was
| Just such an education as would tend to
foster and develop it." He referred to the
episode where Mcdonald had been found,
! when a child, sitting upon an improvised
| throne with his playmates bowling down in
| homage to him, as the first intimation that
the egotistical, self-glorifying nature of the
| father had descended to his son.
His school life, his travels, the develop
ment of all the peculiar shades of his
| acoentric character and their rna1ifpSta-