The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-03-30

has even been carried so far that II
there is variance between the notes Of
the Judge and the stcnographer the
court can and must correct the stem
ogru upher's notes, even though the
court had in a general way previously
certified to their correctness. The
courts notes are paramount the law
says.
HAD TO HELP STENOGRAPHER.
Judge Archibald also says that he had
to help the stsncgrapher out on very
important part Of his notes, which he
could not read and in marginal note
the Judge calls attention to the fact
that various corrections were made In
the transcript of the present opinion,
although it was dictated slowly to the
stenographer who was sitting only
three feet away.
AS to the matter of allowing the jury
to view the premises without permit
ting the defendant to go along, the
judge says, that while authorities diff
fer on this matter, IL is settled In this
state in a supreme court decision In
the case of Salyards 1853 Pa. sol. in
which the ground for new trial was
this very contention. The supreme
court affirmed the conviction.
The matter of admitting the testi-
inony Of confessions made by the de-
fendant does not matter much. he says,
because the defendant himself admit
ted afterwards on the stand virtually
all that the witnesses of the confession
testified TO. Leaving this aside, there
was no error committed, the judge
contends, because IL is discretionary
with the court to admit or strike out
confession.
The Judge takes very pointed excep-
tions to the statement of the counsel
for the defense that the doors OF the
jury room were locked during nearly
all the time that the case was on trial,
Saturday. Dec. 4, and that many Of the
defendants witnesses did not respond
when called, leaving the inference that
it was because they could not gain
entrance to the court room.
MEASUREMENT OF FACTS.
This is a serious misstatement OF
facts, and ] do not see how the counsel
could have brought themselves to make
| it," the judge declares. The doors
were only kept closed during the ex-
animation of a witness and were open
! ed up in the interval between one wit
| ness leaving the stand and another go
| ing on and also in the intervals be-
| tween the direct examination and cross
examination of a witness. Court has
power TO do this. the Judge states, and
in this connection makes the comment:
| TT is no denial of an open and public
trial that the public is not permitted
| to make the court room a thorough
| fare"
| In denying that error was commit
| ted in admitting the testimony of Mrs.
| Wescott's declaration after she came
| from the cellar with her throat cut,
which statement, the defense contend
ed WAS to remote to form pat Of the
res gestae. The Judge quotes a su-
preme court decision in an analogous
case, Com. VS.. Wernty, 161 Pa, sol, in
which there was admitted as evidence
a statement made after the victim had
been carried across the street and into
a barber shop. In this case Justice
Mitchell held that the statement was
part of the res gestae because the con-
tinuity of events was not broken. As
to Mrs. Wescott's declaration that she
had been murdered Judge Archibald
says, it was admissible both as a part
of the res gestae or as dying declara-
ton.
The refusal to allow the defendant
to examine jurors on their voir dire as
to whether or not they would be preju
diced against the defendant if it de-
veloped in the trial that he had beer
living in an immoral state with Mrs
Wescott. which the defense claimed 4
had right to do so as to enable 1t tC
intelligently exercise the right of per
emptory challenge, was dismissed II
the opinion with the comment tina
while an inquiry of this nature nigh
be extended as to prejudice agains
foreigners or something that was in ;
case, but to extend it to anything anC
everything that case might chance t
develop would be to sail upon an un
known sea without guide or compass.
DENIAL IS MADE.
Denial is made that court took tn
consideration of the insanity featur
of the case away from the jury. TIL
weak character of the testimony t
make up this plea was pointed out, tn
court says, but it was left for the jur.
to pass upon it,
The neWly-discovered evidence is no
sufficient to warrant a new trial, tn
court rules, and goes at length into
discussion of the weakness of tn
Gairnes girls depositions, showing tina
II she wasn't deliberately lying she wa
badly mistaken and that even if he
testimony were true, the only materia
matter she testified to-seeing Val
Horn going into the cellar and Mrs
Wescott following with food-was a
occurrence that took place weeks be
fore the killing and consequently to
remote to have any bearing on the case
The opinion concludes thus: "Thi
extended review of the principal rea
| sons assigned for a new trial must b
brought to close. 1t has been mad
not because we had any serious doub
) with regard to the questions discusse
but for the purpose of showing tha
due consideration has been given t
the reasons advanced by the defendan
and that a conclusion adverse to hir
has not been other than deliberatel
reached.
THE rule for a new trial is dis
, charged"