The times. [volume] (Washington [D.C.]) 1897-1901, 1900-06-20

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for the District had affirmed the judgment
Of the Supreme Court Of the District, and
refused to grant Funk new trial, his at
torneys gave notice that they would file an
application for writ OF error. On the day
set for the hearing of argument on this
matter it was determined not to pursue
this course but t. file petition in the Su-
preme Court of the United States for a writ
of certiorari to the Court of Appeals for tie
District, asking that the whole record in
the case be sent TO the upper court. This
petition was filed yesterday with the clerk
of the Supreme Court of the United states.
The three principal grounds upon which
the petition for the writ for certiorari is
based are, first, the alleged incompetency
= of one OF the jurors because Of his having
passed the legal age of service during the
trial: second. the refusal Of the trial couit
to admit certain testimony to be offered to
the jury, and lastly. because of remarks
made by Thomas H. Anderson, District At
torney. while making the closing arsu-
ment for the Government.
Funk was convicted Of numbering Will
liam H. Brooks on the afternoon OF June
%. 1898. He was sentenced to be hsnged
on May IL last. but because of his appeal
to the Court OF Appeals for the District he
was respited until June Is. On account OF
the delay in handing down the mandate of
the latter court the date OF the execution
was further postponed until June % next.
Competence of the Jury.
In presenting objection to the manner
of determining the qualification OF tales
men to serve as Jurors. the record states:
when a talesman said that he had formed
an opinion. but that that opinion would
not affect his verdict, the court permitted
full enquiry into the exact status OF the
talesman's mind, but when talesman
said that he could qualify his verdict in
some cases, the court refused to permit
your petitioner to find out what those
cases were.
That on this account your petitioner
was deprived of an impartial jury on the
question Of punishments. and was COM
PEELED to go to trial with jury who
would. if they found him guilty. find him
guilty as indicted without any qualifica-
ton of the verdict That one. of said
talesmen Frederick HarrenberS. was alb
solutely disqualified, he sayine, that he
90 did not stand Indifferent between the two
penalties. death and imprisonment for life.
and your petitioner was obliged to use
peremptory challenge on him. and after
exhausting all of his peremptory chal-
lenges, a jury, as above constituted, was
sworn.
Your petitioner AYERS that the above
errors in refusing to permit your petition
er to obtain jury impartial on the ques-
tion of punishment, was grave and mani
fest error on the part of the court. and
destroys the effect of the act OF Congress.
and raises question Of such Importance
and general nature that this court ought
to grant the writ of certiorari to said
Court of Appeals, that said question in
wolves the constitutional right OF the de-
PENDANT to be tried by an impartial jury,
and the rulings of the court at the trial
of your petitioner amounted to a refusal
by said court of right given your petit
toner under said Constitution.
Not n Legnl Jury.
"Your petitioner further AYERS that he
was not tried by jury given him by the
Constitution Of the United States and the
common law. but that said jury. for the
reasons aforesaid, and also for the reason
that your petitioner was convicted over
his objection and exception by jury con-
sisting of but eleven competent jurors.
one of said jurors being a non-juror at
the time of the rendering Of the verdict:
that said incompetency of said juror was
not merely disqualification for which he
might be challenged. but said Juror was
. absolutely incompetent to act at the time
of the rendition OF the verdict, he being
of the age of sixty-fve CT over. and sec
ton 7S2 of the Revised Statutes of the
United States relating to the District of
Columbia enacting as following:
No person shall be competent TO act as juror
unless he be a citizen Of the United States.
resident Of the District OF Columbia, twenty
are nd under gixty-fiyp of
The Juror referred to reached the sixty
fifth year Of his age five days alter the
trial was begun. Counsel for the defendant
at that time raised objection TO his serving
longer as a Juror, but the objection was
overruled. The record further says that
THE statute makes said juror absolutely
incompetent to act as juror and the dis |
ability is not merely one for challenge. |
Under the law talesman over this age is |
u never presented to either party for consid- |
Grafton, but the court dsmisses him on |
the ground of absolute incompetency.
Improper Language Used.
"Your petitioner AYERS that said Court |
of Appeals also erred in not holding that |
the court below committed error in per- |
hitting the counsel for the Government |
over the objection OF the defendant to use |
improper. violent, and inflamed language |
10 influence the jury In their deliberation. !
The words used by the attorney for the |
Government were as follows:
He did leave Washington, and he had what he
called good time. What did he dor We find |
him. gentlemen, on the race course, gambling
away his ill-gotten gains; find him asso-
ciating with lcwd women, committing adultery |
adding 10 his miserable record of crime day iv |
day How this man has escaped the clutches vi |
the law this long God only knows; but say TO |
you gentlemen. that the time has come and is |
now here when this desperate MAJ must be ar |
rested IN his numerous career. Allow such \
criminals as this 10 abroad and whose home |
Is safer IL may be that some day when you go |
hack TO your own homes, expecting that every |
thin, will be calm and serene and everybody well
at home that some such wretch as this may have
got In his bloody work. He may have struck !
down your wife. your daughter. or your son. OF
NAV have ruined your home. blasted your NE, |
and brought great disgrace and horror upon |
the StoIe community What would you do under |
such clfcumstancesf
these words charged your petitioner |
with having a miserable record for crime. |
to which he was adding day by day: which |
statement was not substantiated by any |
evidence in the case, and then the atttor-
ney says, How this man has escaped the |
clutches If the law this long God only |
knows and then he says to the jury that |
the time has come for them to arrest this
desperate man In his murderous career.
Unwarrnnted by Evidence.
This language implies that your petit
toner had been a murderer prior to the
time charged in the Indictment, and that |
he had been a desperate man, and that the |
time had come when he should be pun
ished not for the crime for which he was
indicted. but for his murderous career.
There was no evidence in the case that |
warranted hat ha of L