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

viz NAA-A-ANAaC-
Second The assignment Of error
complains Of the admission of the tes-
timOny Of WIN. ]. Horner. Hewas the
tenant Of David Berkey, occupying his
farm. In the morning after the rob
berry he discovered that his barn had
been broksn open during the night and
a pair of horses, brides, n saddle and
blanket had been taken away. He also
found that the straps had been removed
from his fiy-nets and were not in the
barn. Tie straps were soon after dis
covered at Berkey's house, where they
had been used to bind his limbs while
he was undergoing torture. The horses
with the other stolen property We're
found later in the morning some eight
or ten miles away in q field at the side
of the road leading from Berkey's
house to the home Of The defendants.
An examination of the ground about
Berkey's home showed that during the
night the horses had been tied aud fed
near by, and had been ridden by the
robbers along the highway to the point
at which they were found, where il was
evident they had been abandoned, their
riders completing their journey on foot.
The testimony of HOrner was offered
for the purpose Of laying these facts be
fore the jury. It was objected to be-
cause it related to another offense than
that for which the defendants were in
dicted and because it proposed to show
that the defendants were in possession
of the horses. But the relevancy Of
this testimony did not depend on
whether il tended To show the e0mmis-
sion Of another crime, but on whether
the facts were so connected with the
crime under investigation as to throw
any light upon its history. We think
it clear that this testimony was explain
atory Of facts that were before the jury,
and that it tended to show how, and by
what route, the robbers fled from Berk
ey's house; and how it was possible
for the defendants to have been seen 80
early in the morning of the third Of
June at points where witnesses placed
them, consistently with the allegation
of the commonwealth that they were
the perpetrators of the crime at Berk-
ey's house. 1t was also relevant as
showing part of the pertinent history
of the crime under investigation, and
the deliberation with which it had been
planned in all its details.
The third assignment of error is the
admission of the testimony relating to
the possession OF Berkey prior TO the
robbery of a ten dollar Confederate
note and the possession on the day after
the robbery by James ROddy of a note
similar in appearance and OF the same
denomination, which was carefully de
stroyed by him. This assignment can
not be sustained. The evidence, to-
gether with ROddy's declaration about
the bill or note, how he came by 1t and
why he destroyed it, was relevant upon
the question Of identity. 1t was not
conclusive upon that question, but it
related to it, and with the other facts
relating to the same subject was prop
erly submitted to the jury as part Of the
chain of circumstances tending to iden-
tify the defendants as the perpetrators
of the crimes committed on the night
of the second Of June.
Fourth This assignment is directed
at the admission of the dying declara-
tions of David Berkey. Six objections,
reducible to four, are made against their
admission. The first of these alleges
that the commonwealth was under 10
necessity to Use the dying declarations
and therefore had no right to use them.
This rests on misapprehension Of the
rule relating to their admission. The
necessity" to which the text books
aud the cases refer is not in the exi-
geney of any particular case, but a pub
lie necessity which civilized society
feels the pressure Of, for the protection
of human life by the punishment Of
man slayers. Before the Offense OF
murder is completed, the victim must
die. While he feels death to be i'm
pending, but while consciousness con-
tinues, what he declares as to the orr
gin of his injuries and the person at
whose hands he received them is com
petent not in a particular case where
the defendant could not otherwise be
convicted, but in all eases, no matter
how ample the evidence of identiicd-
ton through other sources may be
But the second objection is that ''thC
simple statement contained in the dee
laration L am satisfied that the ROddy
boys brought to my house by the Off
GERS are the same men that robbed and
tortured me- is not a sufficient identifi
cation of the persons on trial" Thi:
objection should be read in connection
with the whole statement or declara
tiOn as made by Berkey. ltruns thus
1.-TWO men came into my bedroom.
asked them what they wanted, and one
of them said Money, by God, and we
will have it, Both men had revolver:
and said DO you see theseg l said
Yes They told me if had any pray
ers to say, was to say them, that they
would shoot me. told them to shOO
but they did not. Then they tied me
both hands and feet, and carried m'
out of bed into rocking-ehair and hi
me in the mouth, knocking tootf
loose. Then they ransaeked the safe
told them my money was in my vest
They got it; it was about one hundred
aud twenty-five dollars in paper anC
silver. They burned my feet some be
fore getting my money. They contin
ued to burn my feet, demanding NOR
money or government bonds. Thel
first burned my feet with paper. After
wards with oil lamps and tallow can
dies. They ransacked the house from
7 cellar to attic. They went to the eel
lar, brought up pies, cakes and milk
and ate and drank. Then they left M
house, and am satisfied that the i've
, Roddy boys brought to my house b.
the officers are the same that robbe'
: and tortured me- This is a vivid state
, poant of the occurrences of that night