The times. [volume] (Washington [D.C.]) 1897-1901, 1900-06-06
FUNK AND SMELL.
Judgments i'm Their Cases Affirmed
by the Court of iPpenIs.

by thc Court of Appeals.
The Court of Appeals for the District
yesterday affirmed the judgment of the
Supreme Court of the District in the cases
of Frank W. Funk and Benjamin H. Smell.
convicted OF murder and sentenced TO be
hanged in the District jail. on Friday. June
-. next. Immediately after the announce
ment of the decision in the Funk case, his
attorney, Baker and Wolf, stated that they
Will today or tomorrow apply to the court
for writ of error TO take the case to the
Supreme Court of the United States. In
the event that this is refused application
will be made TO one of the justices of the
Supreme Court of the United States for a
writ of certiorari in order that the higher
court may review certain constitutional
! questions which have been raised in the
case. Charles II. Turner, of the firm of
Mitchell & Turner. counsel for Smell. when
| informed of the decision of the court of
Appeals, did not state what course he will
| pursue in his endcavor to save his client
| from the gallows.
| In the case of Funk the opinion OF the
! court was announced by Mr.. Justice Seth
| Shepard, who. after reviewing the circum-
| stances surrounding the killing of William
T, Brooks. on June %, 1898, for which the
| defendant was convicted. considered the
| exceptions to the rulings of the lower court
| noted by counsel for the defence during
| the trial. Objection had been raised in
! the lower court because Justice Cole denied
| the right of the attorney on cross-exan
inatiop to ask talesmen certain questions
| in relation to their qualifications to serve
| as Jurors.
, The court held that the trial judge
was right and stated that the only test
as to the qualification of the jurors should
be that he stand without bias as to the
punishm entt to be inflicted, and indifferent
as between the Government and the &C
cused. That is. that having come to the
determination that the defendant is guilty
the juror should be able to approach the
question of punishment as to whether it
should be Imprisonment in the peniten-
tiary for life. or death.
The question CT the competency of JUROR
Robert T. Patterson. who passed the legal
age of service. was also raised by the de-
fence. The court however. held that the
question of competency must he deter
mined by the conditions prevailing at the
time of the commencement Of the trial.
when the juror was sworn Then it Is that
his competency is decided. and it is TO that
time. Mr.. Justice Shepard said. that the
requirements of the statute must relate.
II the juror is competent then he is COM
petent throughout
Patterson announced when called to be
sworn on his voir dire that he was within
| ten days of the legal age for jury service.
which is sixty-five years. 1t was not ex-
pected that the trial would extend over
that time. and there being no other objec-
ton, Patterson was qualified. On the teath
day of the trial Mr.. Baker. for the defence.
moved that the juror be discharged be-
cause he had become incompetent On ac-
count Of his having passed the legal age.
The molten was overruled by Justice Co.e.
and the trial continued.
Several other objections made to the
rulings in the lower court were consid- |
cred severally by the Court Of Appeals. |
and in each instance the decisions of JUS
tice Cole were sustained.
In the case OF Benjamin H. Smell, who
was convicted of the murder of Lizzie |
Weisenberger. the thirteen year-oid
daughter of Karl Weisenberger, on August |
g. 1899 the defence was insanity, and it |
was upon points raised as to the admissi- |
bility of testimony tending to prove this |
that an appeal was taken from the de- |
cision of the lower court. An effort was |,
made to prove that certain members of |
Smells family had been declared of I'M |
sound mind and committed to institu |
tions for the insane. II was also tried to |
be shown that the Smell family was gen.
orally reputed to be OF unsound min. and |
that the defendant himself was insane /
at the time he committed the crime. JUS
tice Clabaugh. who presided at the trial.
refused to admit testimony relative to
these matters and was sustained by the |
upper court. In passing on the question
Of temporary insanity the opinion of the
court. which was delivered by Mr.. Chief |
Justice Alvey, states that all the courts |
of the United States have been averse to
excusing crime on the theory that the
perpetrators mind was momentarily I'M
balanced and that he was sane Just be-
fore and just after the commission of the |
act constituting the crime. Several ex-
ceptions were also noted by the defence
to the charge Of Justice Clabaugh to the
jury. The Court Of Appeals. however,
held that the charge was proper and that
there was no error.