The age-herald., 1901-10-16
Lower Court Erred in Admit ting Evidence of Another
 Alleged Crime BARNETT CASE HAS NOBEARING Mollneux Was Convicted Of Murder of Mrs. Katherine J. Adams In New
 York-Has Not Heard
 of the Decision.


 Appeals has granted Roland B. Mofn- eaux a new trial.
 Molineaux was convicted of the murder of Katherine J. Adams in New York city and sentenced to death. The court | grants a new trial on prevailing opinion | written by Judge Werner of Rochester. the principal ground being that the lower court erred in admitting evidence as to another alleged crime, the death of Bar nett and thus merged two issues- Justices Parker, Haight and Gray did not believe that the Barnett evidence should be kept entirely out of the case.
 Judges Werner. Bartlett. vann and O'Brien concurred in the prevailing opin- ion and for the expunging of the Barnett testimony.
 The court gave out a condensed state ment of the reasons for granting the new trial. It says:
 Opinion of Court.
 Every member of the court of appeals agrees for the reversal of the judgment of conviction of Molineaux on the ground that the court erred in receiving as evil dence the declarations of Barnett made
 
 received Kutnow powders through the mail.
 F "All agree that genuine writings may be received in evidence as standards of com parison with a disputed writing, although such writing may not be the issue on trial, but simply a fact relevant, and material to that issue That the genuine ness of such writings must be established to the satisfaction of the court by cong
 mon law evidence, and wher that is done
 handwriting experts may compare thl
 disputed writings with the genuine writ ings and give their opinion thereon. but
 they cannot select and establish the
 standards of comparison and then com- pare them with the disputed writings
 "All writings must be proved to the 1 satisfaction of the court by a preponder- ance of evidence in civil cases and be- yond a reasonable doubt in criminal cases, CD, by witnesses who saw the paper written or to whom it had been accorded; C2), by witnesses familiar with | the handwriting of the person charged td be the writer. and who are able to testify from their familiarity to belief respect ing its genuineness: (3), where the writ ing is shown to have been recognized and acquiesced in by the person said to have written it. or acted upon by him, his business transaction or other concerns, may under the statue be compared with the disputed writing by witnesses But the court should refuse to receive in evidence solely for the purpose of com parison and writing otherwise prejudicial to the defendant"
 Only Point of Difference. The only subject about which the mem- bers of the court differ relates to testi- | mony tending to show that Mclineaux | caused the death of Barnett by the same method as that used in taking the life of Mrs. Adams. Four members of the court-O' Brien. Bartlett, vann and Wer- ner agree that the evidence should not have been received and the reason for it Is stated in the opinions written by 'Brien and Werner.
 The other three. Judges Parker, Gray and Haight hold that that evidence is admissible in that the evidence in the
 Barnett case pointing toward Molineauu | tends to identify him as the person who killed Mrs. Adams. while attempting to | take the life of Cornish by means of that rare poison. known as cyanide of mercury. the chief judge and judge writ ing opinions to that effect.
 Regarding the admission of the testi- mony regarding the Barnett case, the ma- | Jority opinion says
 If the case had been tried upon the
 theory that the only crime which the de- | fendant had committed was the killing of Mrs. Adams in the attempt to poison Cornish. the next and final step in the l case of the prosecution would have been | to prove the defendants connection with
 the handwriting of the address upon the l poison package.
 But as a part of the theory or theories | upon which the prosecution sought to connect the defendant with the kiIlinr of | Mrs Adams. evidence was offered and re- I ceived to show that the defendant wac | responsible for the killing of one Henry c. Barnett, who came to his death at the knickerbocker Athletic Club house on the l 10th day of November, 1898.
 Rule of Evidence.
 ''The general rule of evidence applioa- ble to criminal trials is that the state cannot prove against defendant any crime not alleged in the indictment efth- CT as foundation for a punishment or as aiding the proofs that he Is guilty of tba crime charged.
 What was the motive assigned for the defendants alleged attempt to kill Cor nish? Hatred engendered by quarrels be- tween them in which Barnett took no part and of which. so far as the record shows, he had no knowledge. What was the mo- tive which Is said to have moved the de- fendant to kill Barnett? Jealousy caused by the latters intervention in the love affair of the former. The mere state- ment of these two motives suffices to show that they had no relation to each other, and that the evidence which tends to prove the killing of Barnett throws no light on the motive which actuated the attempt on the life of Cornish. So apparent, indeed. is this diversity of motive in the two cases that the learned counsel for the people upon the argument herein. abandoned the claim that there was anything in common between them and ingeniously sought to create single motive in the forgeries by the defendant of the names of Barnett and Cornish. Of course, no inferences can be drawn from these alleged forgeries without assuming that the Barnett and Cornish letters were all properly received in evidence and proven to have been written by de- fendant. We will assume. therefore. that all of these letters were properly in evil dence: that they were written by the