The San Francisco call., 1897-03-04
W|Th|N THE
GALLOWS' SH' DOW
Continued from First Page.


specially framed. of certain facts assumed to
be proved, for the purpose of the inquiry.
In the first case, whether the evidence is true
or not, and in the second case, whether the
particular facts assumed are or are not proved"
Confederation of Jurymen
But as in criminal cases, and particularly
in cases OF cap tai crime, the law is reluctant
to deny defendant full consideration OF his
points because of technical errors or omissions
OF his counsel, upon whom he must rely. we
pass to the considerati ton of the proposition
that the hypothetical question and its answer
were not the subject OF expert evidences
ground of objection not presented to the trial
Judge. Upon this proposition the defense is
undoubtedly correct. A juryman would be
absolutely deficient in common-sense and
common knowledge who did not know that
the way to keep an inanimate bject in given
position would be to support it by props or
stays in that position. And the physicians
answer gives expression 10 this when he says
''That is what as all individual would do"
There was here no question OF professional,
scientific or technical kill or knowledge. But
the question and answer were absolutely with
out injury. Not all matters Improperly made
error.
Where the Ultimate conclusion is one to be
reached by the jury itself from the facts be-
fore t, and so called expert evidence is allowed
than that to which they might have arrived,
the admission of this improper evidence is
tantamount to declaration by the court that
they may set aside their exclusive right OF
judging, and accept the judgment OF the eX-
pert. In such cases IL jury is apparent. But
1t frequently happens tnat under the form OF
expert evidence answers are given which are
SO clearly part OF common knowledge that
no injury could have resulted. The question
under consideration is one OF them. Had the
witness been asked: iii You throw stone
{r,f &c xr,it 4 = nr cipk
you strike man on the head with an ak, will
it njure or benefit him?" while the ques tions
do not Call for expert evidence, their answers,
particularly when, as in this case, they are
correctly given, could in the nature OF things
have worked no harm.
The Chisel and the Hammer.
The defense showed by Police Officer Rey-
nolds that two days after the discovery OF the
body he found chisel and hammer in the
pastors study in the church, and that he
belfry door. He testified: my recollection is
that there were two marks tried to fit the
chisel TO. There was no mark that fitted 1T
exactly; there was little play; you could
move the chisel up and down. | could not
tell if there was any more play than would or
dinarily have occurred in using chisei for
prying. l saw mark on the 1amb OF
that door as is at some time blow naa
the hammer was tried in that mark" The
defense then introduced the hammer and
chisel in evidence. The pain purport OF this
evidence was 10 direct suspicion to the minis
ter. In Iebuttal the beliry door and jamb
were offered in evidence by the prosecution,
after testimony from the officer that they were
in the same condition as when previously he
had made the test saving for the absence of
the lock plaIe. The evidence was permissible
The witness was then asked to see If he could
fit the chisel to the marks. 1t was objected
that it was for the jurors to satisfy themselves
upon this matter without the Intervention of
the witness. 1t is true, the jurors cou d have
made the experiment TO their satisfaction
without the aid of the officer; but he, having
testified to his former experiment. the prose-
cution was entitled TO have him repeat it be.
fore the jury The result would be as the jury
determined, either to support or disprove his
oral testimony.
The Defendants Testimony.
The defendant offered himself as witness
and told with much circumstan tiality and de.
tail how he had spent his time upon April 3.
Many objections were interpOsed to ques-
tions propounded him upon cross-examina-
ton. minute examination fails 10 disclose
any error in the courts ruling. The questions
allowed and the scope of the cross-examina-
ton are strictly within the rule expressed in
People VS.. Gallagher, 100 CAL. 466. One or
two of the rulings should perhaps receive
more particular consideration. The defend
ant testified upon direct examination that
when he parted with Blanche Lamont upon
the morning of April 3 it was the last time
that he ever saw her dead or alive, and when
asked upon cross-examination If he had not
prepared a statement which was put into a
seaied envelope addressed to his counsel with
the instruction: f'To be opened II | am con-
victed and to be returned unopened ii am
not convicted" 10 this ana several like ques-
tons objections were interposed, upon the
ground that the statement, if made, was privi-
ieged. The court ruled, and properly. that the
ques tions were preliminary. 1t was the fact
and not the contents of the statement which
was the subject of inquiry, and no effort was
made to extort from he witness any informa-
ton of the latter.
The court further declared that, if the pc ople
failed to follow this preliminary inquiry by
proper proofs, 1t would on motion strike out
the evidence. The witness answered that he
had made no such statement, and there the
matter rested, presumptively to the advantage
OF the defendant, certainly not TO his injury.
strike out the evidence, it must be concluded
that the defendant acquiesced in its
remaining in the case. lCoderberg vs.
Robson, 100 CAL, 933 The court was was
consideration that it could not foretell the line
of proof which the people mig ht take in re-
buttal. The contents OF the statement, while
privileged matter between the client and at
torney and all who had acquired knowledge
of it through relation of legal confidence
would not be privileged II known 10 one who
had acquired his knowledge under other cir
cumstances. The court could not know tha
1t was not some such evidence. which would
be proposed at the proper time.
Carrie Cunningham's Story.
The prosecution then asked the witness
with specifications of time. place and circum
stance, if he had not told Miss Carrie Gun
ningham that he saw Blanche Lamont upon
defed upon the second lauding. This was in
lebu ttal OF defe ndants testimony that he ad
never seen the girl after the morning OF April
g. 1t is argued by appellants counsel that
the comm unication, if made, was privileged
But, considering that Miss Cunningham was a
newspaper reporter. and is not shown TO have
been the wife or to have stood to the de
fendant in any other relation of legal conf.
dence the claim scarcely merits comment.
Miss Cunningham, called in rebuttal, was
asked whether defendant did or did not make
to her the statement above mentioned. ltis
asserted that the allowance by the court o
these questions vas "gross outrage" and
.'bore down TO the ground all the rules o
evidence" 1t was strictly rebuttal evidence
by way of impeachment under weil-settled
rules Of law and under the ex press declara.
ton of section 2052 OF the Code of Civil
Procedure.
The foregoing are all OF the alleged errors IN
receiving and rejecting evidence which cal
for especial comment.
II. j. Mccoy in Contempt.
1t came to the knowledge of the court dur
ing the progress OF the trial tnat one II. j.
Mccoy had said TO juror: eff you don't hang
him (meaning defendanU we will hang YOU
For this fagrant contempt Mccoy was at once
cited 10 appear. An examination was held
By this it was disclosed that the language was
used joeularly and without a serious signifi.
canoe. AT least so the juror TO whom it was
addressed testified that he received and un-
derstood it. For this contempt Mccoy was
promptly and properly punished. The pro-
dings were conducted in the presence of
the jury. This circumstance Is now Tor the
first time charged as error. Doubtless had the
defense desired the jury excused during the
investigation the court would have acceded
10 the request, but no such suggestion was
made. We fail to see how the defendant could
have been injured by this. The mode pursued