The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-04-22
SCORED MIR. KETCHAM
SUPREME COURT SHARPLY CRTTI-
CIsFs THE ATTORNEY-GENERAL.
Went Outside the Record in q Murder
Appeal Casc-Hfs Peculiar
Position.

The Supreme Court in handing down a de-
cision yesterday denying the petition for a
rehearing in the case Of John Sherry, Of
Wells county, now in the penitentiary for
the killing Of his wife, took occasion to give
the Attorney-general a very severe scoring,
and inasmuch as the Atto~rney-general is
practically an officer of the court. the action
caused a great deal Of comment among
members of the bar who learned Of IL. The
opinion was written by Chief Justice Nc
Cabe and reads in part as follows:
"A very earnest petition for a rehearing
Is presented in this case. And IL Is support
appellee. TIE Attorney-genera has inter-
posed a brief in opposition thereto of marked
and signal ability in which he has ably de-
Tended each one OF the rulings made in the
original opinion urged as erroneous by the
appellee's learned counselA
But the Encouragement In conclusion
says: Having said SO much in support of
the Judgment of the court, and against. the
petition for a rehearing, / am somewhat en-
parrassed by the situation. In preparing the
opinion OF the court, L observed the LAM
guage OF the court with regard to the man.
ner in which the oringial brief on behalf of
the State was prepared. and /. therefore,
have carefully and as conscientiously as j
can, examined the record in this case, and
l feel bound to suggest to the court that in
500 tiio JUG lilCit Od6n iOk "
stand. The defendant was indicted for muir
der. as well as for Involuntary m~anslaugh-
ter. Under the first, count Of the Indictment.
brought into review, and 1t was undoubtedly
true upon the evidence that he was a man
of his young wife and brutal in his treat.
ment OF her; that he had separated from her
without cause. All Of these circumstances
count Of the Indictment, and yet Ii Is as GER
tain as that two and two make four, that
ne never was guilty Of murder. and upon
the count OF involuntary manslaughter all
OF this evidence was admissible. The theory
or the second count was that his wife was
Killed while engaged in an unlawful act,
already drawn upon another person. (Sec-
ton 2O6S. Burns Ann. Rev. He did have
a pistol IN his hand hat went of, and that
tnlng more than that is meant by the Ian
guage of that section to draw a deadly wea-
pom. To draw a pistol has a technical mean
meet the requirements of that statute.
There must be some element of illegality
In connection with the drawing, and If the
eyewitnesses to the transaction are to be
believed, there was no more thought or in
tention on the part of the accused of draw
ing a weapon upon his wife, or of threaten
being translated. $50
Personally, / do not see how 1t is pos
sible to read this testimony and believe that
there was anything in the world in connec-
ton with that killing except sheer
ss s5sss and accident The de,
trial, was twenty-six %' years n of a arsl
He has now been in the pen!tentiary
for over five years and has ten years yet to
serve. Az that time he Will come out from
the service between forty and fifty years of
age, broken in character, with no hope or
possibility ahead of him. and all, as / am
constrained to believe. because there was a
great and extraordinary excitement in the
county growing out Of the treatment of
which he had been guilty before he and his
wife had come together, and an inference.
unwarranted by the facts, that the killiny
was purposely and Intentionally done, a cold
FLOODED. brutal murder; me extracts from
transcript, although not a part of the rec
ord, conclusively show this. and I do not be-
lieve that / shall have performed my entire
pointing out these facts After compSi il"Tat.
Ing the trial judge and the counsel that de-
Tended appellant: the Attorney-general winds
ful inspection of all the evidence and weigh
ing IL with all. the p~resumptions in favor of
me action OF the court below that l can give
tnem, mat that evidence does not warrant
the finding and judgment that is recorded
against the defendant
COURTS DREARY TASK.
THE foregoing statement of the Attorney
general, who alone is authorized by law &c
represent and defend the interests of the
State in all criminal cases in this court. has
profoundly impressed US. OR. s. 1894, Sec
1855; Stewart VS.. State, "a Ind, 1922 Had
these statements come from the counsel for
the appellant We should have felt justified In
summarily disposing of them. But, COMING
from the attorney on the other side of the
case, we were induced thereby to doubt the
correctness of the conclusions we had
reached, and thereby were doubly con-
strained to give to the voiuminous record O,
nearly a thousand printed pages and the
Il nlmerNllQ nIncffnnS fhnrafp nx,ol-,A1 ~
ination.
THAT dreary task must be undertaken ant
performed wholly without the aid Of rounse
on the side of the State. since the above
statement from the States cnlv counsel hal
the effect to greatly weaken, If not tc
wholly destroy, the force of all he had previ
ously said in defense of the judgment below
and the conclusion, reached by rs n affirm.
ing Il:
duty OF the Attorney-general In all cases Il
insist on this court affirming a Judgment Of
prejudiclal error has been committed agains
a defendant below. But We do mean - SAY
that simply because he may have A right il
inspection Of all the evidence and weighin,
it, and. feeling that the evidence dues no
warrant the finding and Judgment, we ma,
also have a right to follow his feelings ant
weigh or determine CONFLICTS in The eyidenc,
and reverse the judgment Oh the weight o
the evidence W. deny
lHc SIcdl anu EXTRAORDINARY c[Cttenfn
In the county. growing out of the treatmen
or which he had been guilty before he and hi
wife had come together etc, causing
wrongful conviction of the def n as tn,
Attorney-general strongly intima.es, is TO
assigned as one of the grounds for a new
trial, nor Is Ii assigned as error IN any form
In fact, we have failed 10. find any eyidenc,
in the record that there was great ard ex
traordinary excitement In the county sgains
the accused, or that excitement, either sea
or small, in the county at any time IRE
vailed against him on account of tie din
Guilty between him and his wife, or that ex
element of any kind in. the county preve nte,
him from having a fair and imnart,al trial.
"The Attorney-general must have got hi
Information from sources outside Of the rec
ord. 1t may be that the Encouragement i
fully authorized and justified In governing hi
official conduct from m which h
receives outside OF the record. But this cour
gets jurisdiction of appeals by the recort
only. and by the record we must try such ap
peals only.
"The first count Of the Indictment char &c,
murder in the first degree, and hence, IL Their
was excitement in the county against the de
PENDANT, he could have compelled the grant
ing of a change of venue to another county
OR. s. 1894, Sec. 1870; r. s. 1851, Sec. iii.
And yet, Notwithstanding the fact that tn
defendant on the first trial was by a Well
count jury found guilty and given ffteel
years in the penitentiary, his learned counsel
so justly complimented by the Attorney-gen
eral for their ability In defense Of the &C
| rn1aod novar a~Eol For a rhon1a from, ~