Courier Democrat., 1903-01-08
POINTS ON REVERSAL

Supreme Court Opinion in the
William Barry Case.
Syllabus Of the Opinion Written by
Judge Wallin Reversing the Trial
Court--Queries Now in Order as
to Next Move in Another Trial.
The granting of a new trial to VIM
Barry, brief mention of which was made
in last weeks issue, arouses quite an in
terest as to what will now be the probable
procedure when the case comes up for
another trial in the district court. Barry
will be returned here from Bismarck to
await his second trial in the county Jail
as soon as properly signed order from
the court is received by Sheriff Pinker-
ton. The new trial of Barry will open
here and proceed probably up to the
point at which one or the other side asks
the court to grant q change of venue into
another district. The defense is likely
to make the request for change into
another county, but in any event Cava-
lier county will have to foot the bill.
Judge Kneeshaw will set the case for
trial, that is presuming there is no like.
lihood of the state advising no further
prosecution. The reversal of the sem
tence of Judge Kneeshaw upon Barry
also reverses the judgment, which
stipulated that Barry should pay the
regular costs Of the prosecution, which
amounted to upwards Of 5000, nearly
as large sum as that which he expended
for his defense. The retirement of Hon.
w. B. Dickson as states attorney of this
county and the elevation of his associate
counsel, Judge Cochrane to the supreme
bench places the handling of the prose-
cution in new hands. States Attorney
Price, who took his oath of Office before
the county board this week has the
handling of the case, and no doubt will
have associated with him other legal
heavy artillery. The statement of the
case prepared for supreme court, in
cluding the copy of the charge and ex-
ceptions made 43l pages of printed mat
ter, but that was quite condensation,
as the testimony itself with the charge
and exceptions, made more than 1900
typewriter pages. The points made by
Attorney Bangs who conducted the
appeal for Barry were all based upon
errors of law committed by the trial
judge in his charge to the jury. William
Barry was informed of the action of the
supreme court in granting him a new
trial by Warden Boucher Tuesday night
of last week. He is reported as much
pleased at the news, and as having said
to the warden: Il am very glad that the
new trial has been granted" There was
a smile on his face when he expressed
his satisfaction that was also very ex-
pressive.
The syllabus of the decision in the case
is as follows:
'The appellant was charged with the
crime of murder in the first degree and
to this charge entered plea of not
guilty. The defense of insanity was in
terposed and at the trial large amount
of evidence was offered npon the ques-
ton of appellants sanity on the day of
the homicide. One Mears, non-expert
witness for the defense, testified, in
substance, that he had known the appel
liant for some years, had transacted bust
ness with him and had seen appellant
on the day of the homicide and observed
that he was talking and walking about
rubbing his hands, with his head down.
The witness further testified: II didn't
notice anything particular or out of the
ordinary in his appearance that day
more than have stated that he was
rubbing his hands and walking up and
down. On this foundation, the witness
was asked whether he had formed an
opinion as to the appellants sanity or
insanity on the day of the homicide.
An objection was made to this question
which was sustained by the court. Held,
that said ruling was not error.
Upon an issue of insanity layman
may be required to express an opinion
as a witness. but before doing SO, the
facts developed must show his com
potency to testify. His opinion must
rest upon basis Of fact and the rule is
that non-expert will not be allowed to
express an opinion affirming insanity un-
less the facts developed indicate insanity
to some extent at least. The facts testi-
fed to by Mears did not Indicate insanity
and hence he was not competent to ex-
press an affirmative opinion as to appel
lant's insanity.
Held. further, that no infexible rule
has been formulated by the courts which
will exactly measure the amount of
testimony required to show competency
to give opinion evidence: and upon the
preliminary question of competency the
conclusion to be reached by trial court
is within the domain of sound judicial
discretion and such conclusion, there
fore, will not be reversed on appeal ex-
cept in cases of abuse.
At the trial the state offered testimony
in support of the charge as embodied in
the information and portion of such
testimony consisted of certain statements
made by the appellant to the witnesses
in the nature of confessions and to the