The Somerset herald. [volume] (Somerset, Pa.) 1870-1936, 1898-01-26

the killing. % David Berkey, of Paint
township:
The evidence before the court and
jury on the trial of the defendants in
this case disclosed a murder of shocking
barbarity and as useless to the murder
ers as it was cruel. II appeared that the
dwelling house of David Berkey and
his wife situated in Paint township,
Somerset county, was forcitly entered
on the night of the 3rd June, 1896, by
two masked r1en. They demanded
money. Berkey and his wife were Ia
ken from their bed, bound, beaten and
threatened with death if they did not
at once tell the place where their money
was kept. These modes of persuasion
were supplemented by subjecting David
Berkey to torture. Fires made by light
ed paper and afterwards candles and
kerosene lamp were kept burning under
Lis feet until he was so terribly burned
ALAlN hlGu AtOlA Ills hALuAI =
few months. The murderers secured
about one hundred and twenty five dol
lars in money as the result of their hor-
rible nights work, and after feasting
upon such delicacies as the house could
afford, in the presence OF their victims,
they took their departure. So far the
facts were not involved in controversy.
The burglary, the robbery, the burning
which resulted in death were none of
them the subject of doubt or conflict on
the trial. The great question about
which the controversy ragged before the
jury was whether the defendants on
trial were the persons by whom this
succession of crimes had been commit
ted. The commonwealth alleged this
to be so and gave large amount of evil
dence tending to establish the allega-
iion. The defendants denied all con-
nection with the crimes and all knowl-
edge Of them and endeavored to estab-
lish an alibi. a large amount of testi-
mony was given in the effort TO satisfy
the jury that they were not guilty. The
great question in the ease was over the
Identification of the defendants. The
course Of the trial, the arguments Of
counsel, and the charge Of the learned
judge gave prominence to thisquestion,
aud the verdict Is a determination of il
adversely to the defendants. On a pre-
vious trial, the same question had been
contested, and with the same result.
This question of fact has been settled
therefore by the proper tribunal, and
unless the verdict may have been influ-
enced by some mistake Of omission or
commission on the part Of the learned
trial judge, il should be allowed to
stand, and the defendants should suffer
the penalty which the law afiixes to the
crime of which they have been convict
ed. The defendants allege that suCh
mistakes were committed at the tIial
and have assigned seven errors to the
rulings of the trial judge which we will
consider in their order.
First The first error assigned Is the
netiOn Of the Judge in overruling the
{ halIenge for cause made to +. b. Maur-
er, who was called asa juror, and he
was challenged peremptorily by the de
fenda lts after the challenge for cause
had been overruled- Upon exa mination
on his yoir dire the juror stated that be
hab been present for q day OF two as a
SPECTATOR at the previous trial, and
heard portion OF the evidence on the
part Of the COmmOnW ealth; that be had
also read such summaries of the evil
deuce at the trial as had appeared in the
local newspapers; aud that from what
he had so seen and heard he had formed
an opinion in relation to the guilt or
innocence of the defendants and had
expressed it to others He further stat
ed in substance that this was q provis-
ional opinion resting on what he had
heard and read, and would not prevent
his sitting as a juror at the trial and
rendering verdict in accordance with
the evidence submitted. The challenge
was denial Of his ability to do what he
testified he could do, viz:-give to the
defendants an impartial trial, and de
eide upon their guilt OF innocence un-
| der the evidence in the case. The triel
of this issue was the presiding judge.
He had seen the juror, his general bear
ing, the manner of his answers, aud ht
had heard the examination. The ques.
tion for his decision was SIS ii true thai
! this Juror stands disinterested, and j:
able to give the defendants an impartial
trial?'i He believed the juror, and ac
eordingly held him to bequalified to sit
on the trial Of the case. Now we car
! not bring before US the tones, the man
/ ser and apparent spiri. and character
OF this juror, and for that reason We can
not review the influence such consider.
ations exercised upon the mind of the
learned Judge. We have the answer
only. Unless therefore the answers
were conclusive upon this question, as
a matter Of law, we have nothing befor'
us on which assignment can be sustain
ed. But the answers were not cOnclu
sive. It's putting their effect as strong
/ Iy against the juror as we are justifieC
in doing If we say they raised a pre-
sumption, prima facie, of bias agains
the defendants, when they showed hin
to have formed and expressed an opin
ion. This presumption was removed
his further answers, and his manner
satisfied the learned judge that hi
mind was still open to the influence o
the testimony, was not fixed in tbs
opinion expressed, but to be offered
The Judge was so satisfied He believ
ed the juror to be- capable OF divestinl
his mind of opinions resting on imper
feet knowledge Of the facts, and judg
| Jog impartially upon all the evidenc
that should come before him. We eal
nos say that he was not justified il
reaching this conclusion. IInpartialit,
is not ordinarily occasioned by igDoI
anee. The ability 10 read periodical
I and to think and talk about what on
reads is not disqualification for duty
Other circumstances being equal,
should be regarded as affording som
II