Evening journal., 1896-02-20
FOR BROWN AND SWAN.
Reasons for a New Trial Filed
To-day BY Ward and Gray.
wAPLEs WAS NOT COMPETENT

hurst Attendants Have Left In the
Hands Of the Clerk OF the Peace =
Doeumsnt which VItaIIy Concerns
Brewn aud swan-rime Tor Argument
Net Fixed.
Herbert d. Ward and Andrew O. Gray,
the two lawyers who set up such an able
but fr1itless defense for Daniel Brown
and John Swan, the FArnburst asylum
attendants. indicted and tried for the
murder of Leon Pisa, al Italian inmate Of
the institution. are now earnestly en-
gagged In an effort to secure q new trial
for the convicted men. This was the
day set by the Court Of OYER and
Terminer for the fling OF reasons Tor y
new trial and Messrs. Ward and Gray
have complied with the order
Just when the question will be argued
will depend upon the convenience Of the
court ard attorney general. 1t is safe to
say that the state prosecutor, after hav
ing won such a notable victory will
make desperate fight TO prevent q new
trial, and he and Mr. Cooper may be sue
csssful.
Lawyers who watched the progress Of
the trial say that 1t is probable that
there will be another division on the
bsnch, Chief Justice Lore and Judge
Cullen, who we're opposed to David M
NAPLES testifying, being for 1t, and
Judges Grubb and Marvel against 1T
This OF course, is nothing more than q
prophesy based on the attitude OF the
several members Of the bsnch du ring the
progress Of the trial.
Text OF the Reasons.
Following Is the text Of the reasons
flsd to-day:
Daniel Brown and John J. Swan, the
defepdAnts, by Andrew @. Gray and
Herbers H. Ward, their counsel, fls the
following reasons for new trial:
/ That the verdict was against the
evidence.
2 That the weight Of evidence
adduced In the trial prsponderates
against the verdict.
3. That the jury In their verdict did
not give the defendants the benefit Of the
reasonable doubts arising from the
evidence.
f. That the verdict is against the law
as laid down by the court in Its charge to
the jury.
5.-That during the trial Of said cause,
the state called as one Of It's witnesses q
certain David NJ. NAPLES, to whose
competency as q witness these defen-
dants. by their counsel. made
objection on the ground of his
insanity. That thereupon, these
defendants offered proof OF the insanity
Of said David n. NAPLES. by which it
was demonstrated that the said David
NJ NAPLES WAS, on the fifth day Of October,
A. D, 1895, the day when the alleged
crime for which these defendants are
charged was alleged to have been com
mitted, and insane patient In the Del
aware State Hospital for the Insane, and
that the said David NJ NAPLES has not,
down TO the time Of the Offering Of his
testimony as aforesaid, been dis
charged from said institution.
That II was further shownl
by the testimony Of DR.. Hiram R Burton
that the said DR.. Hiram r. Burton aud
one DR.. Joseph Marsh duly committed
the said David n Waples to said hos
pitAl Oh or about the second day of June,
1895, as an insane person. and that In the
opinion of the said DR.. Hiram r Burton
dependence could not be placed In the
testimony of said David NJ. NAPLES be-
cause Of such insanity. And It was
further shown by the testimony
Of DR.. John II. Hammond, assistant
superintendent at said hospital.
that dependence could not be placed,
because OF such insanity, In the testi
mony Of said David M NAPLES, as to
matters which might have occurred dur
ing the time that said David NJ. NAPLES
was an inmate of said Institution, on
account Of the Impairment Of his judg.
ment and memory, due to his mental
disease. That the state offered abso.
lutely no evidence to rebut the testimony
Of these witnessss-ths only other factor
In determining the competency OF said
witness being the examination of the said
David M. Waples. not under oath, by the
court That the said David N.
NAPLES, having been thus proved TO
have been insane aud mentally incom-
peteut to observe aud testify on the ffth
day Of October 1895, that condition of mind
Is presumed by law to continue until
such presumption Is overturned by com
petent evidence, and that. therefore, the
said court erred In admitting the said
David NJ. NAPLES to testify In said cause.
That during the trial of said cause,
the State called as ore of It's witnesses a
certain David NJ NAPLES, to whose
competency as Witness these defend
ants, by their counsel, made bjsction Oh
Lu6 kIOuuu Oh ulh lubhulty. That
thereupon these defendants offered proof
of the insanity Of the said David ~.
NAPLES, by which it was demonstrated
that the said David NJ NAPLES on the
ffth day of October 1895, the day when
the alleged crime for which these
defendants are charged, was alleged to
have been committed, was an insane
patient In the Delaware State Hospital
for the Insane. That the sald,David NJ
NAPLES had not. down to the time of
the offering Of his testimony, as Afore-
said, been discharged from said institu
tion, and 1t was further shown by the
testimony OF Dr. John Il. Hammond, that
the said David NJ Wsples. because Of
his said insanity and the necessary
degeneration and impairment Of his
judgment and memory, was not. on the day
when said testimony Was offered, com
petent to testify as to matters which
might have occurred while he was an
inmate Of said institution; that said
testimony was not controverted In any
way or to any degree by any competent
evidence. snd that, therefore, the court
erred in admitting the said David NJ