Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-06-06
DECISION AFFIRMED
Funk and Smell Vefdiots Upheld by
Court Of Appeals.
EXCEPTIONS OF COUNSEL DISPOSED OF
Application for Writ of Error in
Funk's Behalf.
HAS NOT LOST HOPE

The opinion of the Court of Appeals. af-
firning the judgment of the lower court in
the case of Frank w. Funk, which was
handed down late yesterday afternoon. as
stated in The Star, was written by Mr..
Justice Shepard. Later, the court handed
down an opinion written by Mr.. Chief JUS
tice Alvey affirming the judgment of the
court below in the case of Benjamin H.
Smell. Both these murderers are under
sentence to be hanged Friday, the 18th in
slant. The details of the cases are famil-
lar to the public.
The opinion in the Funk case opens with
a lengthy recital of the facts relating to
the crime. Counsel for Funk took excep-
lions to certain members of the jury be-
cause of their views regarding a qual1fica-
ton of verdict providing for life imprison-
ment instead of capital punishment. Re
ferring to this point the Court Of Appeals
says:
1--WE see nothing in the act of Congress,
as interpreted, which leads to any reason
able conclusion that the necessary test or
the qualification of jurors in murder trials
Is that they shall have no bias In favor or
or prejudice against either form of punish
/ ment. They should stand Indifferent be-
tween the government and the accused on
this, on other questions involved In the
case.
such minuteness of inquiry into the Sc
cret springs Of emotion, sentiment and
| moral action as would follow the approval
of the contention of the appellant in this
case would not only tend to unduy annoy
and Cypress candid, conscientious and in
telligent citizens, but also to exclude them
| from jury service, with results disastrous
| to the Just enforcement of criminal law
and the preservation of public peace and
good order"
Question of Age.
One of the jurors sitting in the case at
tanned the age of sixty-fve years while the
trial was in progress. The defense raised
the point that a man sixty-five years OF
age being disqualified under the law for
service, there had been a mistrial. Refer
ring to this point, the Court Of Appeals
uses the following language: I'm our opin-
ion, the qualification of competency must
be determined at the time the jury is i'm
paneled. 1t is then that the inquiry Is
| made and the question of competency adiu-
dictated, and 1t is to that time that the re-
quirement of the statute must relate. II
competent then, the competency must be
regarded as existing throughout the trial,
notwithstanding the fact that by some rea-
son the trial may be prolonged Accord
ing to the Court of Appeals, the statute is
not to be given an absurd or unreasonable
effect unless absolutely unavoidable.
The many minor points raised in the case
are passed upon in the opinion of the APP
pellate court in order, and against Funk.
These include the matter of having permit
ted Detective McFeel Altoona TO leStl-
fly, notwithstanding objection: the alleged
signaling between Sophie Brown and Mag
gle Brooks while one of them was testify
ing, and the use of alleged improper Ian
guage by United States Attorney Anderson
in his summing up address to the jury.
The Smell Case.
In the Smell case a question affecting the
qualification of members of the jury is dis
posed of. In general way it is similar
to that noted in the Funk case. The many
assignments of error raise.a were of minor
character such as the exclusion of evil
dence and the denial of certain prayers for
instruction.
Speaking of the matter of general reputa-
ton as to insanity the Court of Appeals
holds that whether this general reputation
is in the family or in the neighborhood
to the mental condition of a party, 1t is not
admissible evidence, even with respect
to the condition of the accused himself.
showing such condition of mind as will rem
der him irresponsible for criminal acts.
Application for Writ of Error.
Attorneys D. w. Baker and Alexander
Wolf, counsel for Funk, today appeared in
the Court of Appeals and applied for writ
of error to the Supreme Court of the United
States The court allowed them until next
Tuesday to file brief in support of the ap-
plication In the event the latter is re-
fused the court will be asked to stay it's
mandate until October, when the Supreme
Court of the United States will next meet
Then application will be made to Mr.. JUS
tice Harlan of the Supreme Court of the
United States for writ of error to the
highest tribunal in the land
In view of the legal steps being taken the
indications are that Funk will not be ex-
ecuted the 18th instant A postponement
until fall may be secured.
Attorneys Turner and Mitchell had not
reached conclusion this afternoon as to
just what procedure to follow in the case
of will 90 hp
this evening and take some action tomor-
row.
Funk Receives the News.
Warden Harris learned of the decision in
the Funk case yesterday afternoon when a
copy of The Star reached the Jail 1t was
late in the day, and the warden gave or
ders that Funk should not be informed of
the courts action until this morning.
When informed of the decision he had but
little to say. He wrote a letter to his father
advising him of the turn his case had
taken.
Smell was in ignorance of what had hap
pened with regard to his case when Star
reporter called at the Jail, although his ap-
pearance indicated that he suspects what
the decision is. The jail officials concluded
they would say nothing to him about it,
but would let his counsel give him the in
formation.
He will never read of it in the papers,"
one of the prisoners volunteered. because
hes too lazy to hold paper long enough
to read anything"
cell, apparently Indifferent to his sur
roundings. He wore linen suit. which
was far from immaculate. while soiled
handkerchief tied about his head suggest
ed that he had headache.
Funk, who was the other side of the
solid brick wall that separates the CORR
doris, showed signs of disappointment, al
though he was cheerful and apparently
hopeful. Although the decision was against
him. he said he still feels certain the truth
of the murder will yet come out.
Regards 1t a Mystery.
at is as much of a mystery to me as it
is to the court" he said to a Star reporter.
eff have to Gle on that thing Indicating
the scaffold) it will simply be the paying of
another persons debt. If they hang me
I'll go to the scaffold like man."
The prisoner said he had not lived the life
of an angel. and If he is executed he will