Evening journal., 1896-02-26
4 DECISION TO- -MORR lW
White and Ward Argued Last
Evening.
sTRAwS BLOWN FROM TIE BENCH

sTRAWs BLOWN FROM TIE BENCH
IudicAte That There VIII BE Division.
Attornsy-Genesal white Says That the
Question Regarding a New Trial for
Brown and Swan WIN BE Decided To-
morrow.
Interest In the argument in behalf Of
new trial for Daniel Brown and John J.
Swan was not manifest at the Court
House last evening for only elven persons
we're present outside of those directly
interested In the outcome OF the effort In
behalf OF the FRrnhurst couvicts.
Attorney General White, who made
the closing argument for the state, after
dllating upon the general propositions
contained In the states brief printed In
the EvRHINs JOURNAL yesterday be
said that, admitting that the testimony
OF NAPLES WAS out Of the Gaze, the Jury
testimony and judge which was true and
which WAS false. It would destroy the
entire judicial system should courts set
aside the verdict OF a jury because 1t did
not agree with their own opinions
When the jury decides against the
evidence, then and then only has the
court the right to interfere
The court had nothing to do With the
reasonable doubt Of the guilt OF the
prisoner; that was the province Of O
jury. Every one admits that an Insane
man is not competent as g witness The
witness In this case was not an insane
man, and the court passed upon his
competency.
When the court divides equally on the
question of a man testifyiug the man
offered as e witness Is In the same posi-
tion as before the division occurred-he
is presumed to be competent to testify
The jury is the Judge OF the value Of the
tssti nony of the supposed insane man
after he is allowed to testify. There was
legal evidence which went TO show that
Wsples WAS competent to testify.
Ward For the Prisoners.
BE was followed by H q Ward, who
made an Hble argument In the prisoners
behalf. He said that the testimony Of
Thomas Oaks as to statements which he
had made. by six several witnesses, was
impeaohed and fourteen times by an
officer Of the court itself He was fatty
contrsdicted In bis testimony by three
Witnesses The other witness WAS
Wsples It was shown by evidence that
NAPLES was not worthy Of belief. The
witnesses differed on several points Of
their description Of this occurrence and
sgreed upon but one-that he was trip
ped The states testimony was In
credible A case never went before q
Jury where the evidence Of the state was
so weak. The testimony ate itself up.
The testimony for the defence was con-
sistent 1t may have been that the
accused men made up a story, but their
testimony agrees with that OF De-
Clayton, who was taken before the grand
jury Of the state. but was not called BY
the state In the trial.
An insane person cannot testify because
he does not understand the nature OF an
oath and Is not bound by It and because
be is not competent to give an intelligent
account Of what be has seen
The court only can decide the compe-
tency OF the witness His credibillty may
be attacked bat his competency can not
be except before the court. The court
must come TO It's conclusion upon svi
dence The court is not an expert upon
insanity, but must depend for les judg-
ment upon some one familiar with such
csses.
Judge Grubb, during the course OF the
argument, said that the court was not
bound by the testimony OF an ex.
pert.
The opinion was exprsssed by Judge
Cullen that II devolved upon the state to
prove that NAPLES was sane. IL would
be ridiculous for the court to take the
unsupported testimony OF a man sup
posed to be insane In preference to the
testimony Of experts Wsples was the
only man who had testified that he war
sane.
At 10 is O'Clock court adjourned, deci-
sion being reserged.
An EVENING JOURNAL reporter asked
Attorney General White this morning
when the court would render q decision
de replied that to morrow morning was
the time Fixed.
There seems to be q feeling that the
court will be divided Just as It was on the
admission of NAPLES as a witness.
An even division would be just as dlsas
trous TO the convicts as q unanimous de-
cision against them