Iowa state bystander. [volume] (Des Moines, Iowa) 1894-1916, 1904-07-15
WALKER GETS A NEW TRIAL.


granted him new trial, but said that
the evidence on which he was con.
vincted was insufficient.
Walker is the colored man who
was convicted of killing Isaac Finkel-
stein a year ago in May. He was in
dicted with Harris Levich. Levich
was acquitted but Walker was con-
victed Of manslaughter and was given
a sentence of eight years by Judge
Given.
To convict him the state resorted to
the Introduction Of evidence as to
conversations of Levich. not in the
presence of Walker, tending to indi-
cate a possible conspiracy, but not
sufficient additional and competent
evidence as to the conspiracy alleged
by the state was offered at that or
any subsequent time during the
Walker trial. ..#
This the supreme court declares
was a fatal error. The state was in
duty bound to introduce Independent
and sufficient evidence as to the exist
ence of a conspiracy it alleged, and in
pursuance of which it claimed that
Walker killed Finkelsten with sin
gletree from a Levich buggy.
1t was not material when this tes-
timony was offered in the cource OF
the trial. says the court, in substance;
but when it was not offered at all.
then it was the duty of the judge to
exclude from the consideration of the
jury the testimony relating to the al
legged threats which Levich had
made; and it was the duty of the
court to determine for the jury the
sufficiency of the testimony as to con-
spiracy.
1t is apparent from the view that
the supreme court takes of the Walk
er case, that he cannot be convicted
now. .
Judge McClain wrote the opinion.
1t winds up after this fashion:
"In the second place, the other
evidence connecting the defendant
with the commission of the crime is
far from conclusive. Two witnesses
testify to seeing defendant and an
other person, who was not identified
by either of them, in the alley where
the crime was committed, shortly be-
fore it's commission, but there was
testimony tending to impeach these
witnesses as to their credibility; one
of them by evidence tending to show
that he was not in East Des Moines
at the time, and the other by evil
dence tending to show her bad moral
character and also to show her testi-
mony was inconsistent with her pre-
vious statements.
"The testimony of these two wit
nesses constitutes absolutely the only
evidence aside from the previous
declarations of Levich (Which the
courts hold were inadmissable) tend
ing in any way to connect the de-
fendant with the crime.
IF the case had been submitted to
the jury on this evidence alone and
verdict against the defendant had
been reached, we, do not say that we
should have considered it without
sufficient support.
What we do say is that it is not d.
so conclusive of defendants guilt
that we are justified in ignoring the
submission of the case on incOmpe-
tent evidence which may have led the
jury to reach a verdict which they
would not have been satisfied to rem
der had the incompetent evidence
not been before Them
Early in the Walker trial the state
sought to show by witnesses that
Levich had made declarations, not in
the presence of Walker. indicating
the employment Of Walker by him to
do up Finkelstein. The attorneys
for Walker objected to the introduc-
ton of this testimony. The state
rejoined that the purpose was to
offer evidence having a tendency
to prove conspiracy On that state
ment the testimony was allowed by
Judge Given to go in and to go to
the jury.
The supreme court says that the
record would indicate that the attor-
ney for the state and the court be-
low entertained the view that "the
fact of conspiracy which must be
established to make the declaration
of Levich admissible might be taken
as established by such declarations
alone, although no other evidence of
conspiracy should be introduced.' In
fact this testimony did go to the jury
without any support.
The assertion on the part of the
prosecution was that the declarations
of Levich which were to be proven
would tend to show conspiracy
says the court. This clearly would
not be enough, for as the rule un-
questionably is, the evidence tending
to show a conspiracy must be out
side of and in addition to the declara-
tions of the conspirators whose dec
larations are sought to be introduced.
The safer rule is to require the proof
of cons piracy to be made before the
declarations are allowed to be
shown
The supreme court declares that
the evidence is not sufficient to make
out a prima facie case OF conspiracy.
1t is not enough that the evidence in
troduced tends to raise suspicion.
The testimony of witnesses relative
to the conversations of Levich and
Walker, and the buggy ride Walker
and Levich took together, etc, the
court finds insufficient to establish a
prima facie case of conspiracy.
Moreover it was the duty of the
court to determine whether this evil
dence was sufficient and to instruct
the jury SO. .
j. B. Rush, who is Walkers attor-
ney, is we'll pleased with the verdict
of the supreme court. In fact he
has said all the time: 81 am quite
sure that a new trial will be grant
ed"
The Bystander does not criticise
the ruling of the judge that tried the
case or the jury's verdict, but why
| was it that Levich was acquitted and
| Walker convicted when they both
| were indicted for the same crime,
! No one saw Finkelstein killed and the