Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-06-26
FUNK GETS RESPITE
President Signs an Order Postponing
Execution Until November.
TIE ATTORNEY GENERALS OPINION
Point as to Qualification of Juror
Patterson.
THE CASE OF BENZ. SMELL

Frank W. Funk will not be hanged Fri
day. Just before the cabinet went into ses-
sion this morning President Mckinley
signed a recommendation made by Attorney
General Gr'ggs that Funk be respited until
November next, to give the United States
Supreme Court opportunity to hear the
appeal for new trial.
The case excited some interest at the De-
partment of Justice, and more than the
usual attention was given to 1t.
When attorney General Griggs went to
the cabinet me citing he took with him the
papers in the case of Funk and presented
them personally to the President. These
included the recommendation of the Attor-
ney General for respite of Funk, which
was as follows:
THE applicant in this case, Frank w.
Funk. was indicted for the murder of VIM.
H. Brooks in the city of Washington on the
I'D of June, 1888; was tried in the Supreme
Court of the District of Columbia on the
said Indictment and verdict OF guilty re-
turned by the jury on the I'D of December,
1889. and was sentenced to be hanged on
the 18th day of June, 1890.
AN appeal was taken to the Court of APP
pealS of the District of Columbia and the
judgment of the Supreme Court of the Dis
trict was affirmed on the 9TH of June, 1900.
petition for certiorari has been filed with
the clerk of the Supreme Court Of the
United States by Funk's counsel, based
upon the various errors of law alleged in
the trial, and which were duly assigned
upon exceptions taken, but the same can
not be heard. because the court Is not now
in session. having adjourned for the term
on the 2Sth of May, 1890, to convene again
on the first Monday in October, 1909. AS
the decision of the Court Of Appeals of the
District of Columbia in this case was not
rendered until the 9Th of June. the petition
sidered by the Supreme Court until 1t meets
in regular session on the first Monday in
October next.
Assignments of Error.
Among the many assignments of error I
think there Is at least one in this case
worthy of consideration, and which admits
of sufficient doubt to enttle the petitioner
to have the same reviewed by the Supreme
Court and that is, whether or not the jury
which convicted Funk was legally consti-
tuted.
Section $40 of the Revised Statutes of
the United States. relating to the District
of Columbia. prescribes qualifications of
jurors follows: No person shall be COM
petent to act as a juror unless he be a cit
iZen of the United States. resident of the
District of Columbia. over twenty one and
under sixty-five years of age. Sec.
3. CHI. SO Jury, Statutes D. c., Albert &
Loveioy.'
the trial of Funk, when examined on the
18th of December, 1899, relative to his
qualifications as a juror stated that he was
within ten days of sixty-five years of age.
He was. however accepted and sworn and
served on the jury. The trial lasted from
the 18th to the I'D of December. 1899. in
elusive Twelve days.. the verdict of the
jury having been rendered on the latter day.
Patterson at the time he was sworn as
juror in the case, was under sixty-five
years of age, but during the trial he reached
that age, and at the time the jury of which
he was a member returned verdict of
guilty he had passed the age limit pre-
scribed in the jury law.
This question is an important one, in
volv!ng the right of Funk to be tried ac-
cording to the forms of law and by legally
constituted jury 1 therefore recommend
that he be granted respite until the sec
ond Friday in November next November
be given for the Supreme Court of the
United States to hear his petition for GER
titorari.
Provision of the Statute.
A main point raised in the case by coun-
sci was that, referred to by the Attorney
General, based on the refusal of the trial
court to discharge the jury on account of
the fact that Juror Robert T. Patterson
was over the age of sixty-five years, and
consequently incompetent to act juror,
and the further action of the court in sem
fencing Funk over his objection the
ground that the verdict found against him
was rendered by an incompetent and uncon-
stitutional jury. one of the members there
OF being a non-juror at the time of the
rendition of the verdict The statute IN
force in the District of Columbia in
gard to the persons who may serve on
juries ia divided under three heads:
Firs:-Thosc that absolutely incompe-
tent, for which no ground of challenge is
necessary.
Second-Those that may be challenged.
Thirl-'NhhSa he nf
exemption.
The juror Patterson comes under the first
head, counsel maintain. The Revised
Statutes of the United States relating TO
the District Of Columbia, section 49,. reads
as follows: mo person shall be competent
to act as 4 juror unless he be a citizen of
the United States, resident of the Dis
trict of Columbia, over twenty-one and I'M
der SiXty-fve years of age and good and
lawful man..
Attorneys Baker and Wolf contend that
this statute makes a juror incompetent to
act who is sixty-fvc years of age or over,
and the same is not merely q ground for
challenge or privilege on the part of the
juror. This question was fully considered
in the case of the United States against
Angney, they point out and in that case
the court held that juror of the age of
sixty-flve or over was incompetent to rem
der verdict in criminal cases.
Another Condition.
Another point upon which Attorneys Ba-
ker and Wolf say they think the Supreme
Court of the United States would reverse
the lower court is assignment of error
that embraces the exceptions taken to the
questions put to witness. McFcely in
regard to threats made by the defendant to
kill him.
Funk Not Surprised.
Funk was not at all surprised at the ac-
ton of the President. for he has declared
himself number Of times as being certain
he would not be executed this week. Funk's
father came here from his home in Allie
gheny, Pa. and had arranged to call on
his son at the Jail this afternoon, believing
he might have the opportunity of an inter-
view but few more times Instead of go
ing direct to the prison, however, he sought
the Rev. Father Mcguire, who has looked
after the young mans spiritual welfare for
several weeks. Father Mcguire told the
father of his sons conversion and pro-
testation Of innocence. The priest and he
were together more than an hour. and they
parted about noon. expecting to meet at the
Jail later In the day At that time 1t was
not known by them Of the action Of the
INIT he had II,