The Portland daily press., 1895-08-06
THE LEWIS CASE.
Arguments for and Against New Trial
for the GOrham Murderer.

for the GOrham Murderer.
Exceptions Argued on Both Sides-Then
the Motions Were Argued-Able Argu-
ments ON Both Sides-Exceptions
Wholly on the Judges Charge.
aaasssazna1a.zu-aazzEaAaa-.~@
In the case of James Lewis alias James
Lewis Welch convicted of the murder OF
Byron G. Coburn at the January term OF
the Superior court, the exceptions and
motion for new trial, were argued yes
terday before the Law court consisting OF
all the.judges except Judge Emery who IS
absent in Europe.
Mr.. Seiders of the firm of Seiders q
Chase. opened the case on the part OF the
defense, with a brief history OF the crime
He then took up the exceptions, fourteen
in number, which are made up wholly OF
objections to portions of the Judges
charge to the jury. 1t is complained that
parts of the charge were argumentative
and prejudicial to the respondent, and
that the testimony of Lewis was un1ayor-
ably commented upon when his evidence
should have been left to the consideration
of the jury without adverse criticism;
that it should have stood upon the same
ground as that of any other witness and
not handicapped by references to the his
torical arguments for and against parties
accused of crime being allowed to testify
in their own behalf
Exception is also taken to the state
ment by the court that If verdict OF not
guilty should be rendered by the jury the
accused could not be tried again even if
indubitable evidence should be discovered
against him the next day. The defend
ants counsel claims that this instruction
was prejudicial to him.
There are also exceptions to the instruc-
tions by the court upon the presumptions
of innocence in that they limited the
force and operation of the presumption of
innocence and allowed the jury to infer
that the presumption ceases when evil
dence is offered to rebut it.
Another exception is that the court in
structed the jury that under the facts Of
this case there was no question of degree
that if verdict of guilty was rendered
there was no question, but that it should
be in the first degree. 1t is claimed that
the prisoner was entitled to have the jury
pass upon the question of degree as a
question of fact, even if the testimony
was all one way.
1t is further claimed in the bill of ex-
ceptions that the court did not sufficient
ly leave to the jury the question of
malice but undertook to decide that as
we'll as the question of degree.
There is also an exception to a portion
of the charge in which the court COM
mented upon the testimony of Officers
Chute and GRAHAM. Mr.. Seiders claimed
that the judge assumed as matter OF
fact that certain confessions and admis-
sions were made whereas Lewis denied
in toto the alleged confession to GRAHAM,
and as to Officer Chute, Lewis only
pointed out way by which Chute might
discover the guilty man. 1t was not a
statement that could be even tortured in
to an admission, much less a confession
as it was termed by the judge in his
charge to the jury.
After Mr.. Seiders had completed his
argument upon the exceptions, Chief
Justice Peters said the court would like
to hear the arguments upon the excep-
tions from both sides before taking up
the motions for new trial as against
evidence. He said that the branches of
the case were governed by different rules
of law; that is, in the case of the excep-
tions it takes five justices to sustain ex
ceptions, and set aside a verdict on the
ground of erroneous instructions to the
jury by the lower court, while to set aside
a verdict on the ground that it is against
evidence, if the law is constitutional, it
takes only three justices.
Thereupon Attorney General Powers
argued the excep tions on the part of the
state.
He claimed that many of the exceptions
were founded upon single sentences taken
from more lengthy statements; that
when the whole statement is read in con-
nection with what precedes and what
follows the effect of the charge was, as
whole, most favorable to Lewis
AS to the exception that the court took
away from the prisoner the right to have
the jury determine the degree of the
crime the''Attorney General said objection
is made to them on the ground that the
judge in giving them invaded the
province of the jury and withdrew from
their consideration the question of the
degree of guilt, contrary to section of
chapter 11S of the Revised Statutes,
which provides: "a jury finding per-
son guilty of murder shall find whether
he is guilty of murder in the first or
second degree" :" These portions of the
charge are in exact accordance with the
position taken by the counsel for the re-
spondent at the trial, and in view of this
fact we do not see DIV the exceptions can
be sustained Mr.. Seiders, in his closing
to the jury and in the respond
ents S presence said: THAT no question
of degree is involved in the case; that if
his client was guilty at all he was guilty
of murder in the first degree. Counsel
should not be permitted to take position