The Providence news. (Providence [R.I.]) 1891-1906, 1897-02-12
A Claim of Newly Discovered
Evidence Made.
Court Ruled This Evidence Must Be
Proven New.
Appeal From Decision Will Carry Case
to u. s. Supreme Court.

Boston, Feb. 12.-The second mott on of
the counsel for the defense Of Thomas n.
Bran, charged with the murder of Cap
tain Nash OF the bsrkentine Herbert Full
Ter on the high seas, was this morning
denied by Judges Webb and Colt of the
United States circuit court.
Ihe evidence on which the petition for
the new trial was based was the alleged
discovery OF new evidence by Attorney
Cotter on board the vessel last week.
MIR. French, junior counsel for Bran,
fled q new bill of exception. In the
new evidence, it was claimed the testi-
mony of Brown, the chief witness for
the government was proved - be- incor-
rect. This evidence was to the effect that
with the cabin under the conditions said
|. to have existed on. the night of the mnr-
der man with hands on the wheel of
the vessel could not see into the cabin 30
ing, as Brown mad testified ne raw the
mate stand in the act OF killing Captain
Nash.
The judges in their decision, stated that
in order for them to grant new trial
upon new evidence, 1t must DO proven
that the evidence is new, which is not
clear in this irstance. An.appeal from
thia decision will carry the case to the
Supreme court 1.-THE United States. The
court has fixed Tuesday Feb. 16 at II q.
M, as the date for hearing on the original
bill of EXCEPTIONS, on which 1t must
pass before it goes to the Supreme court.
Mr.. Cotter asked for 10 days time in which
to prepare FOR hearing on the new bill
filed today. The lcourt stated that 1t was
in doubt as to the counsels right regard
ing time limit en- this bill and has taken
the matter under consideration.
The decision was in part as follows: In
so far as the proposed evidences consists
of experiments by particular persons un-
der some alleged conditions on board the
Herbert Fuller while she lay in the port
of New York il is new, but in 80 far as 1t
is evidence touching the fact In issue Of
the ability Of one standing at particular
point to see into the window 1t IL not
new. 1t was early known tnat the murder
was committed during the part Of the
night when Brown was at the wheel; (;
that Brown had stated that he saw Bran
kill the Captain, and that consequently
he must claim that he..had seen into the
ca bin and into that part Of Ii where the
captain was killed. Those particulars be-
ing known, the question. whether Brown
could have seen into the cabin and
could have seen what he said he did,
would at once force itself upon the mind,
ana was OF such vital Importance that IL
should have boon promptly and
thoroughly Investigated. Investigation
would have been easy. The Herbert
Fuller remained In the port Of Halifax
from the 9th or 9th of August until
August 10th, period of ten days. There
we're persons enough at Hslifax who
might have made tests into seeing into
! that cabin. Diligence would have Sc
cured before the trial all the substantisl
evidence now set UP in support Of the
motion for new trial. Under we'll set
| tied and familiar rules of law the motion
must be denied.
Mr.. Frepch's objections as stated BY
him were to tho finding OF law that the
evidence contained in tho affidavits 10
cumulative and 20 the finding OF law
that the evidence shows laxness on the
part of the defense or bis counsel In not
being prepared with the evidence at the
| trial.