Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-12-30
GETS NEW TRIAL.
William Barry Of Cavalier County,
Serving Life Sentence for Murder.
Granted i New Trial.
Supreme Court Hands Down Opinion
Reversing the District Court.
Kneeshaw Presiding.

sNa8AE@g% 4EEIFFE&4r@
Long Syllabus Cites the Points on
Which the Upper Court Orders
Reversal Of Judgment.
William Barry, formerly a prominent
and wealthy farmer OF Cavalier county,
now serving a life sentence in; the state
penitentiary OF conviction for the MUIR
der Of Andrew Mellemy has been
granted a new trial by the supreme
court court in a decision handed down
today.
The lower court of Cavalier county,
Judge w. ]. Kneeshaw, is reversed,
and Barry will have another trial for
his life by a jury OF his peers. The
grounds for reversal are based largely
upon the nature of the charge OF the
trial judge to the jury. In. the de-
cision the court lays down the law with
regard Ito such charges, holding that
trial courts in this state are inhibited
from conveying to the jury the impress
sions or beliefs of the court with regard
to any essential factin the case. The
court holds that all the essential points
in such a case are put in issue by q
trial, and that the court, until sucn
issues are decided by the jury, must not
instruct the jury that any essential
fact lis established, even where no tes-
timony is presented to disproye tho
fact.
The court also, in its decision, quotes
from the Language of the trial court in
its charge, and holds that it conveys
to the jury the clear expression Of the
views of the court with regard to GER
tain features of the case, and it is held
to be %prejudicial error.
The Barry cas- was a noted one in
the criminal annals of the state. Barry
was a PROSPEROUS and wealthy farmer
of Cavalier county. Andrew Mellem
Was a hired man, who worked for
Banuy. Claiming that Medium had in
vaded the sanetity of his home and be
trayed his sister, Barry took Mellem
into a barn, and after giving him time
to pray, killed him with a knife.
The case was bitterly fought at the
trial. Barry was represented by Tracy
Bangs of Grand Forks. The state was
represented by States Attorney Dick.
son and John M. Cochrane Of Crane
Forks, who is soon to assume the duties
of supreme Judge OF the state: Barry
was found guilty and the penalty fo1
his crime fixed at Imprisonment fo1
life in the state penitentiary. Barry
was sentenced August ~, 1901, ant
was received at the state ~penitentiary
August 20. He has been a model pris'
oner while confined in the institution
He was informed today by Warder
Boucher that he had been granted 9
new trial.
The syllabus of the decision in the
case lis as follows:
.1The appellant was charged with the
crime of murder in the first degree ant
to this charge entered q plea OF no7
guilty. The defense of insanity was
interposed and at the trial a large
famount of evidence, was offered upor
the question of appellants sanity or
-. = HrSN .aH ---.-
the day OF the homicide. One MeaIs
a non-expert witness for the defense
testified, i'm substance, that he ha6
known the appellant for some years
had transacted business with him and
had met him frequently; that he hat
seen appellant on the day Of the HON
icide and observed that he was talking
and walking about rubbing his hands
with his head down. The witness FUR
Their testified: 81 didn't notice any
thing peculiar or out of the ordinary
in his appearance that day more thar
I have stated that he was rubbing his
hands and walking up and down." Or
this foundation, the witness was asked
whether he had formed an opinion a
to the appellants sanity u insanity OF
the day OF the homicide. An objec
tion was made to this question which
was sustained by the court. Held
that said ruling was not error.
Upon an issue OF insanity a layma1
may be required to express IN opinion
as a witness, but before doing 50, tn,
facts developed must show his com
potency TO testify. His opinion mus
rest upon a basis Of fact and the rul,
is that a ~non-expert will not be alloWet
to express an opinion affirming insanit.
unless the facts developed indicate In
sanity to some extent at least. Tn,
facts testified to by. Meals did not In
dictate insanity and hence he was no
competent to express an affirmative
IL 4a~ninion@a as to aDnellant's insanity,