The Somerset herald. [volume] (Somerset, Pa.) 1870-1936, 1898-01-26
WHOLE NO. 2426.

eluslon IS ''Yes; I am satisfied they are
the same men. Ny mind IS at rest on
the subject. have no doubt" This
was adistinet Identification and pilinly
admissible. The third objection is that
Berkey gave no reasons for thinking
the Roddy boys were the men who rob
bed and tortured him he gave his op-
pOrtunities for observing the robbers on
the night of the crime fully. He ex-
amined the ROddy boys, and then said,
eyes, they are the same" This was
enough. His belief rested on his op-
pOrtunities for observing the men, and
he gave these fully.
The last objection is to the fact that a
mask was put on the faces Of the Rod
dy boys so as to leave the same por-
tions Of the head and face open for ex-
animation As was left Of the heads and
faces Of the robbers on that night.
This wss at the request Of Mr.. Berkey.
He also desired the defendants to speak.
He seems to have desired 20 satisfy"
himself upon the question of identity
before expressing an opinion. Tie
mask was used without objection or re-
monstrance from anyone, and apparent
ly with the honest purpose Of deciding
after a careful examination. whether
the defendants were the criminals by
whom the robbery and burning bad
been committed or not. We do not see
that even il the propriety Of the use Of
the mask on the defendants was ques-
tiOnable, it would be valid objection
to the admission Of the dying declara-
ton of David Berkey. 1t might affect
the credit to which it would otherwise
be entitled, but not its admissibility.
But We are By no means prepared to
c0ncede that the use OF the mask, under
the circumstances, was questionable.
The handkerchief fell from the fsee Of
one Of the defendants on the night Of
the robbery and remained Off for some
considerable time. The face OF the
other was not seen except with the
handkerchief upon it. His appearance
as they saw him move about with the
mask on was fixed indelibly on their
minds. II is easy to see that they
might be able TO Identify him much
more easily and certainly, if allowed to
see him dressed and disguised as he
had been during the night OF the %
OF June, than by seeing him without
disguise and as they had never before
seen him. The criticism upon the
charge OF the learned judge which con-
stitutes the first assignment of error is
merely verbal. Possibly the word
STATED" would have been preferable to
the word claimed" in referring to the
testimony Of the witnesses who saw
two persons near the Osborne Cut
whom they did not then kuo 2, bat
whom they said at the trial ressmbied
the defendants But the learned judge
was not attempting to give the purport
Of their testimony, only to refer the
/ jury to the general class to which these
among other witnesses, belonged Theil
testimony related to the Identification
OF the defendants aud he referred
them to their own recollection Of the
testimony.
Sixth The learned judge did not
undertake to recount the witnesses on
either side, or to res.ate their testimony
4 The facts had been discussed at great
length by counsel and the evidence
had been marshalled in support oftheil
respective theories. 1t remained only
for the court to give appropriate lega
Instructions and 70 indicate the ques
tions for the determination Of the jury
This was all the learned ju lge attempt
ed to do other than to refer in the mos
general way to the several lines OF tes
timony applicable to the several ques
tions submitted to them. This wa
carefully and correctly done.
Seventh The refusal of m0tiOl
for new trial is in error in law onl.
when it is apparent that such refusa
amounts to a clear abuse of discretion
This is not alleged in this ease, nor d
we see any reason why it should be
| There was conflict in the evidence. Tn
proper tribunal to settle the eOnfiic
and determine where the truth lies
the jury. That tribunal with the aid {
the fullest argument, and az impartis
charge, has by its verdict settled th
conflict by finding that the defendant
were the two men who broke into th
/ house Of David Berkey in June las
robbed him of his money, tortured hin
and as a result OF this torture, murder
ell him. This is a second conviction
Il is based on testimony that, if belie'
ed, justified the verdict and we are G
opinion that it should not be disturbe
because of the reasons presented to u
on this appeal The judgment is Their
fore affirmed and the record remitte
for further proceedings according
law.