Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-02-08
sibility Of the evidence, under consider.

hIiOil. ,
Mr.. Morris claimed that the court had
discretion to allow the recall of wit
nesseS If 1t considered 1t In the interests
Of justice.
Mr.. Mcintosh replied that he did not
question the right of the court to re-
call witnesses, and admitted that such
right was discretionary with the
court, but that the utmost care should
be used In the exercise of such power
The court then stated that 1t would
listen to arguments pro and con rela-
tive to the right OF the court to allow
the recall OF one or more witnesses for
the prosecution to testify as to the al
legged general threats Of Flemmlng
against all trespassers on his farm.
Here the court ordered a recess for
an hour to allow the defense to con-
suit authorities. The. time was i'm
proved by the jury prisoner and most
of the counsel also IN enjoying dinner ut
the jail, near by, and a large amount
OF Princess Anne chicken and tender
shoat was disposed Of Flemming sat
at one end of the table and around 1t
were ranged the Judge, lawyers, wit
nesses and others. The prisoner was
in good spirits and seemed to enjoy the
dinner.
COURT RECoNvENEs.
AT 1870 court reconvened and the
court at once announced its decision
that 1t had discretion as to the admis-
sion of the evidence referred TO. and
that 1t would exercise its discretion and
listen to arguments on 1.-The question
OF the admissibility OF evidence as to,
tTemming's continued ownership of his
tarm and as to the general threats that
he made prior to the shooting of Sny-
der, relative to Shooting anyone tres
passing on his farm as If he were a
bird or rabbit
As to the proof of continuing owner
snip, Mr. Mcintosh cited a case show
ing that different weights of evidence
were required In civil and criminal
proceedings. This case he applied to
the weight of evidence necessary to es-
tablish the fact that Snyder was killed
on Flemming's land, and said that no
evidence had been adduced to show
mat snyder was killed or that his body
was found on Flemmings land.
He urged that It was necessary for
| the prosecution to prnve- that -Snyder.
and his companion did hunt on Elem
ming's land. He said 1t was also in
cumbent OH the prosecution to prove
that Flemming did kill Snyder before
they could prove threats to kill. That
the fact,of killing by Flemming must
be first proven. He contended that
threat to kill could not be introduced
to prove that a man did kill another,
but that after the killing had been
| proven, thethreat could then be proved
to fix the degree of the crime such as
murder In the first degree, murder in
the second degree. manslaughter, in
| voluntary granddaughter or justiflable
! homicide.
| He cited from "Wharton's Criminal
Evidence" to sustain his position and
closed by asserting that no evidence
had been adduced to prove that Sny-
der was on Flemming's land.
MIR. Norris then also quoted "Whar-
ton on Criminal Evidcnce."-Sec 756--
as to the admissibility as evidence of
declarations and threats. Then a disa-
| sreement arose over the meaning Of
The words corpus delicti," and proof
| OF corpus delicti.' Mr.. Morris then
stated that when a body Is found "cor-
pus deficit" is Established. Tn this case
the corpus deficit was established when
the body of Clarence Snyder was
found.
Mr.. Morris said the threat comes
within the naturalization of n class that
had been threatened Gall hunters tres
passing on Trimmings farm, and that
Snyder was one of this CLASSY. He also
| quoted wharton on Criminal EVIL
dencc" to prove presumptive continu-
ing ownership, unless alienation Is
proved, applying in criminal as we'll
as civil cases.
TESTIMONY ADMITTED.
Mr.. Mcintosh then rose to reply and
spoke for about forty minutes. Mr..
Morris again spoke about AN lhnur in
support Of the cklims OF the prosecu-
ton, and then Judge White revised his
| decision of the previous day and de-
cided that the testimony was admssi-
Bile. by reason OF this decision several
witnesses for the prosecution were re-
Called, and they testified that they had
heard Flemmng say, two days before
the murder that IL anyone came on
his farm without his permission he
would shoot him as quick as he would
n bird or a rabbit. After the strong
battle OF the defense to exclude this
testimony 1t would appear that it is
very DANA ging to the accused
| me defense then introduced several
colored men, who undertook to prove
an alibi, testifying that Mr.. Flemming
was at his mill between 10 O'clock in
the morning and p. m. Mr. Morris
here cross-cNamincd these witnesses at
considerable length, and he brought
ont many contradictory statements
from theh. one teStlhed that Elem
ming did not go to the store, but was
In plain view OF all the mill hands
from 10 o'clock until 4. Another testi-
fed that Flemming waited on him at
| q bar near the mill, serving him a
drink at a quarter to ]. Another tes-
tilted that the colored man who had
sworn mat he went to the store to get
n drink had not left the mill. One of
them testified that the mill was fixed
so 1t could run by 1890 o'clock Two
| others testified that they Wnrknd INT Il