The sun., 1900-11-25

fhs cour NJ Apresls handed do-n several

' siderrd I'm. dee i-lnn elsew here In the ca-a
| Of Dr samuel ! Kennedy on appeal from n
| Judgment of CONVECTION ~ murder In the first
| degree, new trial was ordered on th" ground
! that testimony was erroneously admitted ~
! IN statement. made by the bel-boys Of the
! Grand Hotel IN the ptos"BCe Of IN" defendant
| The crime was committed at that hotel and th"
| theory on which the evidence was received
WAS that II tended ~ connect the Defendant
! with the commission ~ tho murder. ~ h" re-
maincd silent where an innocent man would
! naturally have denied what they said This
influence could hardly he drawn however.
| In view Of the fact that Police captain Price
was present at tho time and cautioned the
prisoner not to say anything. and 50 judge
Haight held in writing the opinion Of the Court
| OF Appeals
In commenting upon tho reversal In the Ken
nedy case the Nsu York Times quotes "A we'll
known criminal lawyer who had been prominent
in many criminal actions" AZ saying The
, Court of Appeals of recent years has departed
from the strict and rigid lines formerly fol-
lowed and now looks for reasons for new trials
even though the record shoHs no naerait
errors This ! think. Is due TO the fact that
there IL a growing tendency against the m
fiction Of the death penalty Our impression
ndu betI IIOll ullN' anu N' nav 'Hp-
posed that the Court Of Appeals would not re-
verse in a capital case except for clear error
That there has been such error upon the trial
Of several important murder cases within the
past few years IL unfortunate but undeniable
A conspicuous example IL the first trial OF the
Sheldon case u5s New York Reports, page 2Os) -
where the jury were coerced 10 agree by being
kept out eightv-nve hours without beds or
cots In the last ten volumes Of the New York
Reports U54 to 1889 We find twenty-five capital
cases The judgment OF death was affirmed
in fifteen OF these, while In seven cases new
trial was granted. The aflirmances include
the case Of Martha Place IN BROOKLYN and that
Of Howard &. Benham Of Batavia who after
ward obtained new trial al Special Term on
the ground Of newly discovered evidence.
Among the judgments affirmed b. the Court
of Apreals on Tuesday was that OF the Appellate
Division of this department in the case oi
Stewart against Ferguson. which involved an
important question in the law OF master and
servant scafold constructed for wcrknen 10
stand on in the course of tn, erection OF build
ing was formerly regarded not as place where
work Ia u be done, within the rule Of the law
recurring n master To- furnish suitable place
in which TO do his work. but n, an appliance
merely, SO that II the master provided his
workmen with the proper material for the
construction Of the scaffold and one OF them
put II together defectively. the master was not
responsible for any resulting injury 10 another
workmln. In Stewart against Ferguson. MIR,
Justice Rlin.ev, writing for the Appellate
Division, held that the Labor law Of 1897 had
changed the rule in this respect The making
OF the scafold," he sad. "is no longer a detail
Of the work. the responsibility for which is
imposed upon the servant. but the scarold is
regarded as a place furnished by the master
UPON which the servant Is TO work and the
master ia forbidden to permit that place To be
unsafe. unsuitable or improper but Is bound
so 70 construct i as 70 give proper Protection
gagged upon IL The existing law thus makes
Il the personal duty OF the maste TO exercise
reasonable care to see that the scafold which
able for the purpose TO which II is to be applied.
In the case Of Brooklyn patrolman named
John Z. Schelpp. the Appellate Division OF the
Supreme Court In the Second Department
decided last March that 1t was lawful to pro-
mote him To the position OF roundsmsn without
any competitive examination. in recognition
OF his gallant conduct IN saving life at a fire
while In the discharge of his duty as a police
officer In the case Of New York roundsman
namod Dennis Grady. whom the Board of Police
here attempted to promote TO the position OF
sergeant without any competitive examlna-
ton, but on account OF meritorious and heroic
conduct 10 the performance OF his duty as
roundsman. the Appellate Division OF the
First Department has recently denied that any
such power OF promotion exists Tho judges
In thi, department do not question the cor
rectness Of the decision in the Schepp case.
but hold that II involved the construction OF
provision of the Brooklyn charter which
has no application 10 Grady. who came into
the police force Of the former city Of New York
under the Consolidation act Of 1882 II would
seem that there ought TO be one uniform rule
on this subject for the whole OF the Greater
New York. No good reason N the nature OF
things can exist why an old Brooklyn police
man shoull have the privilege 81 being pro-
moted under circumstances which would not
confer the same privilege upon an old New
York policeman.
In case just decided by the Supreme Court
Of Missouri. testimony was given against the
defendant In a criminal prosecution by woman
who had formerly been his wife but who was
now divorced from him. Her statements
tended directly to prove that her former hus-
band was guilty OF the crime charged in the
indictment, The supreme Court holds that
this evidence should not have been received
by the trial court The law assumes that a
husband will not commit a crime IN the pres
ence OF his wifo ercs II in confidence induced
BY the marital relation" says Judge CAN'T. az
reported In the Kansas CITY Times 1T is
the policy OF the law that these things which
are privileged during the marriage relation
shall remain forever inviolable. whether the
relation has ceased by reason OF death or d-
vorce. or not; and that the divorced wife.
from reasons Of public policy IL incompetent
TO testify against her husband To the same
extent that she would have been if the mar
rage relation had never been dissolved IL
was long ago held in England that "A wife who
had been divorced by Act of Parliament could
not testify against her former husband Eat
the language In which the Missouri court states
the reason for the general prohibition is little
peculiar.
President Judge Arnold, OF Court Of Com
mon Pleas No. in the city Of PHILADELPHIA
Ia, recently expressed himself very emphali-
cally In favor of the divorce laws of the Com
monwealth of Pennsylvania. which are more
liberal than those Of the State of New York
where marital infidelitv IL the only cause for
absolute divorce. permitting the innocent
pnrty to marry again. "Our divorce laws are
wise and just" says Judge Arnold in a recent
opinion Il do not agree with those persons
who occasionally dcnounce them. The hatred,
misery, sin and crime, which so often flow