New-York tribune., 1901-10-16
NEW TRIAL FOR MOLINEUX
Continued from first page.

ferent times, inspired by separate motives. and
charged against one person Is there any SoRnec, &c
connection is established by the Barnet and Cor
letters should not have been received in evidence
for any purpose, but again We shall assume LOT he
poses for which they were used. 1t is urged that
the poison which caused the death OF mrs MIS- n Adans
fully produced and administered by a person who
fore. it it was proper to show the use of the
poison in previous case. Other evidence 1au pee1 S
properly admitted to show that the Defendant had
the knowledge skill, appliances and opportunity 10 10
as plain as that two and two make four that the
man who could produce it in one case coIlu 90 SO
means were used in the two cases simply proves proves
that two distinct crimes may haHe eee4 rhere not
a fact circumstance in the Barnet case that,
essential fact in the Adams case until we come TO
the subject of the handwriting Of the Barn9t anu anu
Cornish letters and that Will be cohsluefeu uAuer
AS TO I IDENTiTY What is there in the evil
dence of the alleged killing of Barnet that tends 10
identify the defendant the person VINO polsIIeu @
killed by the defendant the crime has its oWn re sep
Of the cpime charged in the Indictment The mere
fact that the two crimes are parallel as 20 @
does not serve to identify the defendant as the the
poisoner of Mrs Adams unless less ms ms gmiaritv RI to
the former. Such inference might De l9stineu t
fendant had killed Barnet and that no other person son
could have killed Mrs. Adams But no l SuSn tht ev,
the defendant had the knowledge. skin and nd ma, a
EdIasb TO BGt Se Was not shown to only
Of this sa than ah' there
aTe manv such persons Therefore. the naked SINH
larity Of these crimes proves nothlhs
EXCEPTIONS ELIMINATED.
AS briefly possible and yet perhaps at
Of fbe i've foregoing exceptions TO the general rule
in the effort to exclude them. one by one IRON ap,
RRaye successfuly eliminated each of them then
they are all removed from the case ana II neces-
cariiv or the barnet eNi
was relevant competent to prove me huT1er @ % Sa
added that even If the evidence relating TO the me
death of Barnet were gengTay Of Mrs Adams vet
there fatal in the admission OF the state
had told him with reference TO receiving the box Dox
of Kutnow powder by mail. I'M nns tharefore NO
competent testimony in the case that Barnet ever
6en Wa nothing in the Barnet correspondence
to SHOW that the defendant had ever written for
di6er 99 m the Cornish letter Of December
1885, Was written I T. the rec1rd the Is defendant with
the killing of Barnet. At this point II Is proper @
proper 10 prove the distinct crimes with separate
motives there an utter absence OF evidence OF
mSs;Er Ss TO y THE HANDwRTTiNG-It is clear that 1t
was error TO receive or use as standards OF COM
naTison n'i the Barnet letters They inadmis-
sibe because % they constitute part OF the
or relevant to the issue. under the indictment
herein 9 and being neither I ot m rereveI % solely
as standards of comparison because they. were
CORNISH. letters it is sufficient 10 say at this
time that the general rule on the subject OF hand ma
down herein will probably guide the tTiaI court , m
ae a 20 i6em mpcn another trial It was further
urged at the bar In behalf Of the detehqant @ Inat
parison OF a disputed writing with any writing
proved TO the satisfaction OF the couFt n,saTy Of
genuine unconstitutional We are cIealtE .t oa
the opinion that the proper const%ruct@or % @ OF %, me
genuineness OF the standards with when the ais
puted writing is compared ....,,,,,, ~, co,,r-
sci the defence is that the learned trial court
rnnnv m ~ the defendant given al the coroners
inquest This question must be decqdea LOT ''Iq
appears that the defendant attended the Inquest
nd m n testified he t eoTohsq and Ra
threatened with punishment for contempt II ne re-
a subpoena for the defendant and to punish him II
The law presumes that a party who Is called upon
to testify as a witness knows his rights lie
70 fneFiminste him, hf the defe5daPt could have
done had he chosen TO claim his privilege. Having
failed 10 do so. he cannot now complain
POINTS URGED BY COUNSEL.
Among the questions urged upon our attention
there are several which may be grouped together
for the purpose OF such brief consideration as we
the court erred in it's Charge the jury and in It's
for the defendant; % that preiudicia error was
in the opening and summing & up rpsa gs t9e m
admitting incompetent evidence and excluding com
and 90 that the defendant did receive that fair
and impartial trial which he is entitled under the
be discussed Many OF the exceptions taken TO the
mitting or excluding evidence have been disposed
OF in the conclusions that the Barnet evidence
counsel that error was committed In the opening
ard summing up OF the District Attorney and that
1.-The defendant did not receive that fair and inn
partial trial to which he is entitled under the law
be inclined to discuss in detail the many grounds
OF error assigned under these heads were II not
fGi and critical review Of the twelve thousand
folios of this record for that sole ppppose Such
scnable and useful limits, and, in view Of the
decide the questions raised as to the conduct OF
the Recorder and the District Attorney upon the
And, finally counsel for the defendant contends
e e Ut Of the Eg IS ba fot the
Judgment herein is required by the decision reached
pages pPge OF this opinion It Would be obviously nn
profitable and improper IN the face ace, Of the new trial
weight of the whole evidence. and we therefore
pass the defendants fourth point without further
In conclusion, we desire to express our sense Of
the defence upon this appeal for the fairness and
6 with wnGa IN eae case nd was and for
ment of details WHICH have contributed mate
The Judgment Of the court below is reversed and
a new trial ordered.
JUDGE o'BRIEN CoNCURs
Judge O'Brien in his opinion said:
The defendant was required to answer the charge
charge OF causing the death of Barnet; but by the
court. he was really and substantially required to
answer both charges. and since this constitutes q
clear error OF law the defendant is entitled to have
The Judgment of conviction reversed. and, as this
may possibly result in new trial. 1t is scarcely
within the province of this court to express any
opinion on the facts.
Judge Parker. together with Judge Haight and
Judge Gray. voted for reversal of the Judgment
the ground that the court erred In receiving the
testimony of Drs. Douglass and Phillips to the