Evening journal., 1896-02-25

/ statement OF those principles: A re-
| spectacle text writer observes that tn,
/ witness. 60 be competent. must have
been Ia possession of his intellect at the
time os the event to which be tsstidas. al
well as at the tine OF the examination,
and that It ought TO appear that nc
serious ht OF insanity had intervened, Sc
as to cloud his recollection. to cause him
TO mistake the illusions OF the imagina
tion for the event he had witnessed.
las TO the FIRST date. the evidence sd-
duced by the defense was adequate, con
elusive and wholly incontroverted In any
way or degree, and establish the fact
that tho witness WAS then insane.
LAS to the second date, the only legal
evidence adducsd by either side was that
OF the defense, which evidence WAS wholly
incon troverted by any legal evidence.
Where a person Is named In The panel
and another Is summoned. and the latter
serves on the jury, 1t is = mistrisl, be-
cause none should serve save those on the
panel for otherwise. no challenge could
be taken.
"To establish the guilt Of the prisoner,
the state was bound to provo the aver
ments as laid Ia the indictment. la the
description OF the means by which the
deceased came TO his death by the act Of
the defendants, the state was bound 10
set out, with a certain degree Of partlcu.
larity, the means aud method OF the
IL filcting Of the mortal wouud In the
absence Of proof OF the itilictlng OF the
mortal wounds In the manner In the
indictment set FORTH the verdict Of the
jury cannot be supported, aud a new
trial should be granted"
Extracts From Hammonds Testimony.
Mr.. Gray read extracts from DR.. Ham
mond's testimony. which went to show
that David NJ NAPLES WAS an asylum
patient out on parole, and one In whose
Judgment aud memory, reliance could not
be placed, being always mentally aber.
rated at all times, and Incapable Of giving
a correct account Of what happened while
he was In the institution.
"JaIlaber" or "GaIlaher.n
When the question Of the name Of
Juror John Gslsher came up Mr Cooper
stated that he had the affidavit Of Levy
Court Commissioner Henry NJ. White, OF
the Fourth district. TO prove that the
slip bearing the name OF John Jallaher"
which he placed In the box for the Jury
drawing should have been John
Gallaher, and that John GAllsher. the
jaror who responded TO the name Of
John JallRher" was the one whom he
intended to have on the panel should
the slip be drawn
Mr. Gray contended that John Jal
laher' was drawn to serve on the panel
John Gallaher" was summoned; "John
Jallaher" oppeRred on the list Of Jurors
and was drawn In the course Of selecting
Jury to try the case; "JOhu Gsllahsr'
answering when John Jallaher'a" name
was called.
The court asked Mr. Gray n be con-
tended that some other man was intended
and Mr.. Gray was forced to admit that
be did not know whether or not John
Gallaher" and "John JallAher" were one
and the same person.
1T is your business TO show that they
are not, said the court, and followed
this up BY advising Mr.. Gray to pass on
to another point.
"Gentlemen, you accepted the panel,
did YOU notY"
YES. SIR" said Mr.. Gray.
==."Then," continued Justice Cullen, Il
think 1t rather late TO object to 1t now.
State Presents Its Brief
At 945 o'clock Mr Cray closed snd Mr..
Cooper presented the brief for the state,
which was as follows
lin answer to the first four reasons
assigned fer a new trial. tbs state sub
mits the following general prop ,sltions
Of law: That IL is the prevailing rule
that a verdict will not be set aside unless
clearly, palpably, decidedly and strongly
against the evidence; that tho verdict
should be so much against ths weight OF
evidence AS on the first Il ish OF 10 to
shock the sense Of justics, or else there
has been a q grant abuse Of discretion !;
taat 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.
ga motion for q new trial Is ad
dressed to the court which tried the
case, and is 40 appeal to the legal dis
erection Of the court to prevent q pslpR
bic and material wrong The motion,
therefore, Is never to be granted II the
court conceives that a substantial legal
Justice Of the case has been reached,
notwithstanding Irregularities may have
occurred, nor Is It to be granted where
the failure Of justice has not been palpa
ble. nor where the wrong done however
palpable Il may be, Is trivial Ia extent,
the court do6s not exercise the p)wer
Of appeal from the jury, but impofe' It's
equitable authority to prevent the jury
from ficting by their verdict q gross
material and palpable wrong.
SIN criminal cases Rs we'll 10 IN
civil cases a verdict will always have
great weight with the court new trial
will not OF course be granted, bscause
the court Is not beyond q reasonable
doubt from the evidence on the record Of
the guilt OF the dsfendant
'4-Where lunatic is rendered IS a
witness, It IL for the court to decide
whether le shall be admitted and II upon
his examination upon voire dire ho
exhibits knowledge OF the religious
nature Of an oath and appears capable OF
giving an account OF the transaction OF
which be has been an eye witness, It Is a
ground for bis admission. IL Is for the
Jury to Judge Of the credit that is to be
given to bis testimony.
"5-If the illegal evidence admitted is
only sceumulativs. and there has been
positive evidence upon the point, the
admission Of such evidence is not
generally ground for a new trial.
'6-The court will not set aside q
verdict on account OF the admission OF