The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-05-02

monwealth against Joseph Keller,
which was written by Justice Fell:
The defendant. in support of the allie
cation that he had acted in self-detensc,
was allowed at the trial without objec-
ton TO offer proof of threats made by the
deceased. Some these threats had
been made In the presence OF the de-
fendant, and neard by him; others had
been made in his absence and had not
been communicated to him. In three or
the assignments 1t is alleged as error that
the court failed to call the attention of
the jury to the effect that should be
given to uncommunicated threats. and
that In this respect the charge was In
adequate and misleading. In connection
with these assignments only that part
of the charge is given which refers to
the effect on the defendants mind OF
threats made by the deceased.
Earlier in the charge the attention of
the jury had been called to the threats
which the deceased and the accused had
made against each other. and it was
then clearly stated that the purpose OF
this testimony was to throw light ON the
relation in which they stood to each
other and the condition of their minds
when they met. 1t was said: But in
considering the evidence, you will begin
with that which throws light upon the
rotation OF tne TWO men one lo Tue blHt' >
and these threats on the one side or the
other, If you believe they were made,
will show YOU the condition of mind
of these two men when they came near
or when they approached each other
at least it will have u tendency to do
that"
WHY 1T WAS ADMISSIBLE.
1t was for the purpose thus stated that
the testimony as to threats made by
either was admissible. Proof of uncom-
| muniCated threats made by the deceased
was received as tending to show his mo-
| tive and intention and thus giving rise
| to an inference that in the fatal en-
counter he was the aggressor The ef-
| feet to be given to such testimony might
| have been more fully explained, but
| what was said in the charge in relation
| to 1t was not misleading, and in the alb
| sence of a request for more specific in
| structions on the subject it cannot be
| said that the charge was inadequate.
| The photograph of the deceased was
| offered by the commonwealth to rebut
| testimony that the defendant was a
| smaller man than the deceased This is
| a kind of testimony which should be re-
ceived with caution. In recent case,
| Bearlslee VS.. Columbia Township, 1SS
Pa. SOP, it was said by our brother
Mitchell: photographs are competent
| leNlueIlCe, anu WHGll plOptlly ldhtil dle
judiCially recognized as of a high order
or accuracy. See Uddersook vs. Com, Il
Pa. $40. But in careless or ineXpert, OF
| Interested hands they are capable ol
very serious misrepresentation of the
original. Before they are permitted to he
used in the trial. therefore there SHOULD
always be preliminary proof of care ano
accuracy in the taking of them, and oi
their relevancy to the issue before thC
jury"
on a question of size a photograph
would probably be less reliable than or
one of identity. But where other OBJ
iects. whose size is known, are showI
in the picture, and appear therein It
have been at the same distance from
the camera as the object whose size il
sought to be established a reasonabl,
safe means of comparison is furnished
This was a ful-length photograph, ant
the witness who identified it and testified
} to its accuracy was represented in 1t
standing by the side of the deceased
This gave the jury a sufficiently saf
guide.
REMAINING ASSIGNMENT.
The only remaining assignment whicl
need be noticed relates to the refusal O
the court to direct the district attoTne
to call a witness, Charles LOwn, who's
name was on the bill Of indictment r
the request of the defendants counsel
the district attorney replied that he ha
called all the eye-witnesses to the occur
/ renee, and the court sustained this re
fusal to call the witness on the groun
, that his testimony would be cumulatiV
, merely. 1t appears that this witness SAY
, the shooting, and that the fact that h
, was present had been disclosed by wit
i nesses before examined. The offe
, should. however, be judged in the ligh
!. in which II was presented to the couI
l | at the time.
The statement of the district attorne
, that ne had called all the eyewitness
| was not controVerted and the fact tbs
other witnesses had testified to the pres
l eEco of this one was not called TO III
: attention OF the court. 1t then appeare
h to the court that the eyewitness coul
q have testified only to the threats whic
\ had been made some hours before III
encounter. as to which there was no di
y pute.
The refusal to require the common
I wealth to call this witness would not !
e ground for reversal even if il had al
e peared that he was present when the d
= ceased was shot. Sixteen eyewitness
f had already been examined. While it
Q the duty of the district attorney in sue
- a case as this to present all the test
mony ON the material facts whether az
verse TO the defendant or favorable
o him. the court in its discretion may linn
II the number of witnesses to be called.
: TRIED WITH GREAT CARE.
There was not a Withholding of test
mony favorable to the defendant or
, failure on the part of the district alto
lie ney to present 10 the jury all the mat
lie rial facts. II was the right Of the d
If fendant to have all the facts connect
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