Evening journal., 1896-02-25
FIGHT FOR A new TRIAL
Fate of Brown and Swan In
the Hands of Four Judges.
SPECIAL SESSION LAST kvBEISe

IefLUlAI bhbclUN LASl hNhNlhl
Brown ard swan Wero Not Present ts
Hear Argument. Counsel waivInx tn.
Right of Their Presence-LYnoh and Hi
BonosmRn and Browns Sister Inter
ssted Auditsrs--"CA AlIaher" OF "Jalla.
her" Soon Disposed Of BY the Court.
A special session of the Court Of 'Ogsl
and Terminer was held last evening tc
hear argument on motion for a new
trial Of the case of Daniel Brown and
John J. Swan, convicted Of killing Leon
Pisa, an inmate OF the Delaware State
Hospital at Farnhu rat, on October 8. 1895
Chief Justice Lore and Associate
Judges Grub, Marvel and Cullen were
on the bench Attorney General Robert
O White and Deputy Attorney General
Peter L. Cooper. Jr.. represented tho
etate and Andrew Gray and Herbsrt
q. Ward appeared fer the two convicts
Court opened at 7.30 o'clock. There
were few visitors, but several women
occupied seats in the jurors chairs, one
OF them being Browns sister. Among
tho lawyers present to hear the argument
wsre Levi Bird, Secretary of State ]
Harvey Whiteman, John n. Rodney,
Hugh O. Browne, Artemss Smith, ex.
United States District Attorney Alexan-
der B. Cooper. Walter H. Hayes, Horace
G Knowles. William NJ Byrne, Josiah
Marvel, Robert Adsir, Judge J. Frank
Ball, Clifford James, Henry R. Bring
hurst, Jr.
Michael j. Lynch. who was aoqultte d,
was also sn interested spectator Patrick
Plunkstt, his bondsman, was with him.
Presence of Prisoners Waived.
Both sides waived the presence Of the
prisoners. aud Brown and Swan paced
their narrow cells Ia the basement while
their lawyers were arguing In their be-
half In the court room above.
Mr.. Gray opened argument In support
OF the motion for a new trial by reading
the eleven reasons fled In the Office Of
the clerk OF the psscs several days ago
and printed in full 10 the EVENING
JOURNAL on the day Of the fling.
Brief In support of the Motion.
He then submitted his brief. which
was as follows. and cited authorities In
support Of the proposition set fourth
therein:
"The court In which trial was had OF
party who was wrongfullY convicted by
reasons Of anything occurring upon trial
can, upon reasonable application. review
the evldential features OF trial. aud set
aside verdict for any cause that would
avail in civil cause, where q motion for
q nav trial should be made
"The granting Of new trials is a mat
to" a the legal discration Of the court,
kHG this discretion will be exercised to
prevent injustice.
"a new trial will be granted more
readily by the trial court who heard the
evidence than by an appellate court re
viewing the case.
"A new trial will be granted more
readily in a criminal case than In civil
one, and In considering the motion for a
new trial, greater latitude IN the examl
nation OF the evidence will be permitted.
because a greater degree Of certainty IN
the evidence Is required. and also life
and liberty are endangered as against
merely property ia civil causes.
Before a sentences can be pronounced
on defendant in a criminal case, he has
a right to the judicial determination of
his guilt by the court as we'll as by the
Jury. II the verdict does not satisfy the
conscience Of the court tbs prisoner Is
entitled to a new trial.
IF the court is not satIa6ed with the
. verdict and believe that there may re
main a reasonable doubt Of the guilt Of
the defendants, It is the duty OF the
court 70 set 1t aside, even though thsrs
may have been some conflict In the testi
mony.
"a person not Of souud mind 10 inca-
pable ef testifying Where an objection
Is made to the general competency OF a
witness to testify In a cause upon q
ground which would forbid his being
qualified to testify by being sworn. and
where evidence, that is to say the sworn
testimony Of competent and creditable
witnesses, has been adduced to prove the
/ ground OF incompetencT of the witness
the unsworn statement Of the witness IN
court should not be regarded In any sense
as evidence to rebut or remove the effect
Of the testimony which dlsquslifes him
In such q case, the testimony of the wit
ness proposed should be excluded.
"0n tbs proof OF insanity, opinions OF
medical men are entitled TO peculiar
weight
After insanity has been proved. the
presumption Is sgainst sanity, which
presump ption continues until the contrary
is shown by evidence
''As to the effect of the division OF the
court upon the question OF the com
petency of David M. NAPLES to testify,
| the following seem to be correct prin
clplss: General insanity being proved,
as has been done In this case, the
presumption is that II continues, and Il
rests oa the party offsring the witness
to show the court that he has been 50
far restored to sanity as that he may be
heard as a witness, with any reliance
upon his memory and judgment,
"Where evidence Is rendered, elected
10. and the court divides upon It's
admisslbility, ths evidence is excluded.
"In the case before the court the
witness, Waples, was rendered by the
State; his competency 90 q witness was
objected to by tine defense on the ground
Of his insanity; adequate and legal
testimony was produced by the defense,
establishing the witnesses insanity
bsfore, on aud after the fifth day oi
Ostobsr. 1895 that he was not, at the
time Of rendering him as q witness, able
20 eiVe q correct account Of occurrences
while he was in the asylum, which covered
Ostober 8 1895, and that he WAS still 9