Delaware gazette and state journal., 1896-02-27

that ii the Court finally divides upon
the question OF the witness COM
potency, that his testimony should be
excluded.
Before the witness NAPLES should
have been allowed to testify, tho Court
should have been satisfied by competent
evidence, first. that he was Of sound
mind on October 9TH, 1885, SO that be
could correctly observe and judge Of
occurrences which he might have seen;
second, that he was of sound und on
the day he was called TO testify.
'Rapalye's Witnesses, section 4,
citing Allison's practice, contains the
following statement Of those principles:
a respectable text writer observes that
the witness, to be competent, must
have been in possession of his intellect
at the time of the event to which he
testifies, as we'll as at the time of the
examination, and that it ought to ap-
pear that no serious tit of insanity had
interviewed, SO as to cloud his recollec-
tion, to cause him to mistake the
illusions of the Imagination for the
event he had Witnessed.
''As to the first date, the evidence
adduced by the defence was adequate,
conclusive and wholly incontroyerted in
any way or degree, and establish the
fact that the witness was then insane.
aAs to the second date, the only
legal evidence adduced by either side
was that of the defence, which evidence
was wholly lncontroyorted by any legal
evidence.
Where person ia named in tho
panel and another is summoned, and
the latter serves on the jury, it is a
mistrial, because no one should serve
save those on the panel for otherwise
no challenge could be taken.
"'ro establish tue guilt Of the prisoner
the State was bound to prove The aver
ments as lai, in the indictment. In
the description of the means by which
the deceased came to his death by the
act Of the defendants, the State was
bound to set out, with certain degree
Of particularly, the means and methods
of the inflictng of the mortal wound.
In the absence of proof of the inflicting
of the mortal wounds in the manner in
the indictment set forth, the verdict
Of the jury cannot be supported, and a
new trial should be granted .
In the contention that the wrong
man had served on the jury, John
Jallaher being the name on the list,
and John Gailaher the man summoned
and who served, the Court after getting
clear as TO the fact seemed disposed
not to attach any Importance to il.
Gallaher was challenged and did not
sit on the case.
Mr.. Gray was followed by MIR. Cooper
for the State, who presented the follow
ing brief
81 In answer TO the first four
reasons assigned for a new trial the
State submits the following general
propositions of law; that it is the pre-
vailing rule that a verdict will not be set
aside unless clearly, palpably, decidedly
and strongly against the evidence; that
the verdict should be so much against
the weight of evidence as on the first
flush of it to shock the sense of justice,
or else there has been tlagrant abuse of
discretion; that courts will never, in
the absence OF the most satisfactory
evidence that the verdict is erroneous,
substitute their impressions for the
opinion of the Jury.
"2-The motion for a new trial is
addressed 10 the Court which tried the
case; and is an appeal to the legal dis
cretion of the Court to prevent pal
pable and material wrong. The motion,
therefore. is never to be granted il the
Court cunccives that substantial legal
justice Of the case has been reached.
notwithstanding irregularities may
have occurred nor is ii tn be granted
where the failure of justice has not
been palpable; nor where the wrong
done, however palpable it may be, 10
trivial in extent; the Court does not
exercise the power Of appeal from the
jury but imposes its equitable authority
to prevent the jury from inflicting By
their verdict a gross, material and pal
pable wrong
"3-ln criminal cases as we'll az in
civil cases verdict will always have
great weight with tho Court; new
trial will not of course be granted he
cause the Court are not beyond a
reasonable doubt from the evidence on
the record of the guilt of the defendant.
"a Where lunatic is rendered as a
witness, it is for tho Court to decide
whether he shall be admitted ard IL
upon his examination upon voire dire
he exhibits knowledge of the religious
nature of an oath and appears capable
of giving an account of the trans
action of which he has been an eye
witness, ii is ground for his atlmia-
sion, it is for the jury to Judge of the
credit that is to be given to his testi-
mony.
''5-If the illegal evidence admitted
is only accumulative, and there has
been positive evidence upon the point,
the admission of such evidence is not
generally ground for new trial.
"G-The Court will not set aside
verdict on account of the admission Of
evidence which ought not to have been
received, provided there be sufficient
evidence without it to authorize the
finding of the jury.
''7-lt is general and recognized
principle of law that where in the very
nature of the case such evidence only
as is generally inadmissible can he pro-
duced, the Court will on the ground of
public policy, and on tho ground that
such evidence is essential for the pur-
pose Of public justice, admit the same.
"S-Where person generally in
tended for the jury actually served, but
was returned and named in the dis
tTess as Robert Moore, but in the panel
as Robert Mawre, held no ground for
arrest of Judgment. Elj4
t9-As in civil SO in criminal cases,
il it is apparent that the error claimed
of did no harm, a new trial will be
refused.
"lo-The object of pleading, in its
application TO criminal cases, is
statement of the crime imputed to the
prisoner with such particularly of cir
cumstances only as will enable him TO
understand the charge and prepare for
his defence, and will authorize the
Court to give the proper judgment upon
conviction; that the word shock used
by one of the medical witnesses, was
used as medical term. being the effect