The herald., 1897-02-09
] SPLITTING LEGAL S1RANS
In Arguments on Barthel-
man Murder Case
ON THE MOTION FOR A NEW TRIAL
FuIkerson, of Insurance Lottery
Fame, Again Arraigned
oDELL'S SUIT COMPROMISED
L. F. Coyle Charged With Having Forged
Jerry IlIich's Name
The Azusa Justice Fails to Comply With
oDELL'S SUIT COMPROMISED
L. F. Coyle Charged With Having Forged
Jerry IIIich's Name
The Azusa Justice Fails to Comply With
the Law
Guadalupe Lopez Once More Enjoying Her
Preedom-M. Mitrovich, q PorterviIle
Fire Fiend, Arrested at San Diego.
Pitiful Scene In Dept.

Yesterday was the time set for passing
sentence of death upon John Barthel
man, convicted of having murdered Ma
bel, his wife, in November last. But he
wasn't sentenced, and it will, in all prob
ability. be a long time before he is.
The crowd that attended yesterday in
department one did not altogether
throw away their time, however. for the
interposition of Frank F. Davis, Esq,
the defendants counsel. in his effort to
obtain a new trial for his client, was
marked by interesting arguments.
Barthelman's counsel began his argu-
ment on his motion for new trial by as
serting that an examination of the rec
ord disclosed manifold errors. He pro-
posed confining himself to discussion
of three propositions, any one of which
was, he thought, sufficient to warrant
new trial. The only defense put for
ward had been the unsettled mental
condition of the defendant at the time of
the homicide making him irresponsible
for the act. Every bit of evidence bear
ing upon that point was of the utmost
Importance, and if the court made any
single error, counsel argued, that only
would suffice to entitle the defendant to
a retrial.
INCOMPETENT WITNESSES.
In the admission of every syllable of
testimony on behalf of the people re-
garding the sanity of Barthelman the
court committed error. That was the
first proposition that counsel started
out to argue. In making allusion TO the
testimony of the city jailer and of Mrs.
r. E. Fisk he urged that these witness
es, as we'll as others, alluded to conver.
sations with the defendant and gave it
as their opinion that he was perfectly
sane and in his right mind" but did not
give the conversations themselves.
Counsel gave it as a proposition of law
that when upon question of irresponsi-
bility arising from mental instability a
non-expert witness cannot testify save
by giving in detail the words, facts and
circumstances upon which his opinion
is based. Not only the supreme court
of this state, but of every state in the
Union, and the supreme court of the
United States had decided that point.
The field of the expert witness is the
field of the scientist, and the non-e expert
must give every circumstantial detail in
order that the jury may determine if his
opinion is well founded or not
Judge Smith iuterposed a this point
to draw the attention of counsel to the
fact that in this state the law was not
SO rigid, and that witness might under
certain circumstances, give his opinion
as to the mental condition of a defendant
at certain time. Mr.. Davis replied
that while in will contest case, for in
stance, a witness might predicate a
certain condition of mind on certain
facts he failed to understand that in
criminal cases the law of this state
varied from that of any other In the
case of Barthelman no attempt had been
made to state the details or circumstan-
ces surrounding the transaction and in
definite conversations had formed the
basis for the opinions of witnesses re-
garding the sanity or insanity of de-
fendant. And this applied not to one
or two but to all witnesses for the peo-
pie. To sustain his contention. Mr.
Davis read from numerous authorities
and then proceeded to his next point
which bore upon the question of threats
having been made by Barthelman.
NOT ONE THREAT EVER UTTERED
Every witness who undertook to testi-
fly for the people, counsel PORTED out,
with regard to friction having existed
between Barthelman and his wife, ad-
mitted on cross-eXamination that they
had never known of a threat having
been made by the defendant against his
wife. Mr. and Mrs. Holden and Angie
Lord were the principal witnesses, and
there had been injected into the case
certain matters for the purpose Of show
and were not threats. Little domestic
differences lacking malice, the prere-
quisite in the case, was altogether ack-
ing.
The last point made by counsel was
that the verdict was not justified by the
evidence. He argued that it was
recognized rule, although perhaps not
legal proposition. that there must be
shown motive before jury can return
an adverse verdict. In this case there
had been no passion that might reduce
the crime to manslaughter. The testi-
mony of Mrs. Crum. who was in company
with the defendant. his wife and Angie
Lord. showed that she could not under
stand or hear the entire conversation.
but what she did hear was in an ordi-
nary tone of voice and as she and Angie
Lord said, He was calmer than usual"
Three times he asked, "Will you give
me the child. Mabel?' and then followed
the discharge Of the pistol The evidence
of Mrs. Crum and Angie Lord relieve the
case of passion. and neither malice or
motive for that which was done had been
shown.
MOTIVELESS CRIME
In such case the jury had to assume
that the crime was motiveless-and that
Is irresponsibility, and in such case they
ought TO have acquitted the defendant
The only subject of discussion was OF
fact that had no existence save fr the
mind of the defendant Uhe unfaithful-
ness Of his wife). He passed from the
period of delusion, counsel c0ntended. to
the period of homicidal intent. and when
taken INTO consideration with tine othel.
facts IN the case he thought that urgant
reason existed why the defendant should
be accorded a new trial
HAS THE COURT DISCRETION?
Deputy District Attorney McColnas
In replying to Mr.. Davis argument. read
from a number of authorities in civil
cases to show that with regard 10 per
nitting witnesses to give their opinion
regarding defendants mental state
much had to be left to the discretion
of the trial court. He argued that the
court was in the best position to form
Judgemnt regarding the degree of fa-
miilarity witness mirht have with
defendant to warrant their being per-