The Worcester spy. [volume] (Worcester, Mass.) 1898-1904, 1901-10-16

Cornish letter of Dec. %, 1898, was
written, the record is barren of evil
dence which tends to connect the de-
| PENDANT with the killing of Barnet. At
this point 1t is proper to observe also,
that even if it could have been proper
to prove two distinct crimes with sep
arate motives there was an utter alb
sence of evidence of motive in the Bar
net case
AS to handwriting:
1t Is clear that 1t was error to receive
or use as standards of comparison the
Barnet" letters. They were inadmis-
sible because Cd they constitute a part
of the Barnet" evidence, none of which
was competent or relevant to the issue,
under the indictment herefn (2) and
being neither competent nor relevant
to the issue they could not be received
solely as standards of comparison be-
cause they were obviously prejudicial
to the defendant
AS to the Cornish" Letters it is suf-
ficient to say at this time that the gem
eral rule on the subject of handwriting
expert testimony which we have laid
down herein, will probably guide the
trial court in the disposition of the
questions which may arise as to them
upon another trial.
1t was further urged at the bar in
behalf of the defendant that the sta
tutes of 1880 and 1888 authorizing COM
parison of a disputed writing with any
writing proved to the satisfaction of
the court to be genuine, are unconsti-
tutional
We are clearly of the opinion that the
proper construction of the statutes re-
quires the submission to the jury of the
genuineness OF the standards with
Which the disputed writing is compared.
Another point urged upon our atten-
ton by counsel for the defence, is that
the learned trial court erred in admit
ting in evidence upon the trial, the tes-
timony of the defendant given at the
coroner's inquest. This question must
be decided for the guidance of the
court below upon another trial.
1t appears that the defendant at
tended the inquest and testified there
at pursuant to a subpoena issued to
him by the coroner and that defendant
was threatened with punishment for
contempt if he refused to testify. The
coroner had the right to issue sub
poena for the defendant and to punish
him if he disobeyed it.
The law Dresumes that a party who
is called upon to testify as a mere wit
| ness, knows his rights. He may decline
to testify to anything that may tend
to incriminate him. This the defendant
| could have done had ne chosen to claim
his privilege. Having failed to do so
he cannot now complain.
Among the questions urged upon our
attention there are several which may
be grouped together for the purpose of
such brief consideration as we deem it
necessary to give them. They are "a
that the court erred in it's charge to
the jury and in its refusal to charge
| the requests submitted by counsel for
the defendants; (2) that prejudicial err
ror was committed in the opening and
summing up of the district attorney;
CD that the trial court erred in admit
ting incompetent evidence and exclud-
ing competent evidence, over the OBJ
lection of the defendant; and a. that
the defendant did not receive that fair
and impartial trial to which he is en-
titled under the law.
The first and third of these points
need not be discussed. Many of the
exceptions taken to the charge, the re-
fusals to charge, and to rulings admit
ting or excluding evidence have been
disposed of in the conclusions that the
Barnet evidence was inadmissible.
The claims of defendants counsel
that error was committed in the open
ing and summing up of the district at
tOrney," and that 1.-The defendant did
not receive that fair and impartial trial
to which he is entitled under the law"
have been so urgently presented that
we should be inclined to discuss. in de-
tail the many grounds of error as
signed under these heads, were it not
impossible to do so fairly and impair
TALLY, without full and critical re-
view of the 1900 folios of this record |
for that sole purpose. Such review |
would extend this opinion beyond all
reasonable and useful limits, and in
view of the result reached we deem it
unnecessary to discuss or decide the
questions raised as to the conduct of /
the recorder and the district attorney
upon the trial.
And, finally, counsel for the defend |
ant contends that the verdict of the |
jury is not supported by the evidence
In view of the fact that a reversal of
the judgment herein is required by the
decision reached upon the two ques-
tons discussed in the earlier pages of
this opinion, 1t would be obviously I'M
profitable and improper in the face Of |
the new trial which must be had to |
express our views upon the weight of |
the whole evidence; and we, there
fore, pass defendants fourth point |
without further mention. The judg- |
ment of the court below is reversed |
and a new trial ordered.
Judge Parker. together with Judge |
Haight and Judge Gray, voted for a |
reversal of the judgment on the |
ground that the court erred in receiv- |
ing the testimony of Drs. Douglass
and Phillips to the effect that Barnet
stated to them in his last illness that
he had received a box of Kutnow
powder through the mail, but the
three judges dissented from that part
of the prevailing opinion which, in
effect holds that had the fact been
established by competent evidence
that Barnet had taken a dose of Kut-
now powder containing cyanide of
mercury which he had received
through the mails, nevertheless, the
evidence tending to show that the de-
PENDANT mailed that Kutnow powder
to him is inadmissible in the trial of
the defendant for the killing Of Mrs.