The herald., 1897-10-12
MAYBE CASE
Full Text of the Supreme
Court Opinion
A NEW TRIAL IS ORDERED
VHE vEXED QUESTION OF ELSIE
SYMPTOMS AGE
A new TRIAL is ORDERED
Wayne Elated at the Prospect Of Being
Able to Prove His
Innocence

II man is not altogether corrupt in
mind the ordeal Of trial on the revolt
ing charge of having debauched girl
Of tender years is such as is calculated
to make him review his past. And this
whether he be guilty or innocent Of the
charge preferred.
There are not lacking indications that
the supreme court Of this state has, in
deciding the appeal case Of Clifton f.
Mayne trenched somewhat upon the
province Of the clergy. and has made a
convert. At least if Mayne hasn't got
what during revivals is termed "relig-
ion" he has at all events got much
heartier reverence and respect for the
Bible than ever he had,be And with
cause.
The opinion just handed down by the
court of last resort. while reversing the
Judgment of the trial court and remand
ing the case for a new trial, arrives at a
conclusion on a technicality such as un-
der ordinary circumstances it is diff
Q reversal of the judgment.
This technicality is the Bible episode
during the trial of Mayne, when the
prosecution sought to reinforce the tes-
timony of Mrs. Shipton regarding her
daughters age by putting in Bible
wherein Elsie's name and age were set
forth. The age bore unmistakabl indi-
cations of erasure and manipulation,
but upon the mere fact of that Bible hav-
ing been introduced at all the supreme
court has granted new trial.
The opinion, which Is from Justice
Harrison, concurred in by Justices Van
Fleet and Chief Justice Beatty, holds
that the appeal is dismissed, but the
Judgment and order denying new trial
are reversed and. new trial is ordered.
REASONING AROUND IT
The opinion reads as follows:
The defendan was convicted Of rape
in having sexual intercourse with a
female child under the age of IA years,
and has appealed from the judgment of
conviction, and from an order denying
q new trial.
There was sufficient evidence before
the jury to authorize them to find the
fact Of sexual intercourse by the de-
fendant with the child, and. that she was
at the time under IA years Of age, and
their verdict thereon Is not open to re-
view.
The crime IL charged to have been
committed March 30, 1895, and for the
purpose of establishing the age Of the
girl at that date her mother testified
that she was born June IA, 1881 The
to, a
Bible in which was entered the record of
the birth Of a girl named Elsie Shipton
(the name of the prosecuting witness)
on the 14th Of June, 1881, The court ad-
mitted the Bible in evidence against she
objection Of the defendant.
The mother testified, that she made this
entry of Elsie's birth some time after
the girl was born, she thought some time
during that year. There were appear
ances on the face Of the entry that the
date 1881 had been changed by being
written over after 1t had originally been
written, but it does not appear that any
other date was originally in the entry,
and the mother testified that she had
not changed it. Whether there hao
been a material alteration in the entry
was to be determined by the court when
Il was offered ard before 1t should be
presented to the jury. In the absence
of any showing to the contrary, we must
assume that the court was satisfied that
the change was immaterial. Like mat
ters addressed to its discretion, its rul-
Ing in this respect is not open to review,
unless it is made to appear that the dis
cretion was abused. 1t does not clearly
appear that the book in which the entry
was made was family Bible. There
was no direct evidence of this fact, and
although the mother testified that it
came into her possession in. 1876, 1t was
not shown from whom she received it, or
in what manner 1t came into her posses
sion, Nor was ii shown that the other
persons whose births and deaths were
entered therein were members OF fer
family, or that they had the same or
similar r.ames. We need not, however,
determine whether the character of the
book was sufficiently shown (See Jones
v. Jones, As MD. 1907, since the court
erred upon other grounds in permitting
the entry to be read in evidence.
THAT BIBLE ENTRY
An entry in family Bible is written
declaration of fact made out Of court
not under the sanction of an oath, or
with any opportunity to test its correct
ness by means of REORGANIZATION. 1t
is but a declaration by the person who
made the entry, and is OF the same char
acter as any other declaration, whether
written or oral. Being made in. book
where entries of the same nature are
often made, it is es1titled to greater
weight by reasons of fornality thar
would be a similar verbal declaration,
but the principles upon which it is re-
ceived in evidence are the same as gov
ern verbal declaration of the same fact.
It It liearsay evidence, subject to the
same general rule by which that class of
evidence is governed, that the fact
sought to be established cannot be other
wise shown. This rule was esta blished
by Chief Justice Marshall in Nina Queen
v. Hepburn, Cranch, 209, in the fol-
lowing terms: "Hearsay evidence is in
competent to establish any specific fact.
which fact Is in its nature susceptible Of
being proved by witnesses who speak
from their own knowledge" Such evil
dence is admitted in matters of pedigree,
but, as Mr.. Greenleaf says (Section 1860:
sSThe rule of admission is restricted to
the declarations Of the deceased persons
who were related by blood or marriage
TO the person." Taylor, in his treatise
on Evidence. 9th Edition, says: where.
however, the declarant Is himself alive
and capable Of being examined, his
declarations will be rejected;" and in