The Washington herald. [volume] (Washington, D.C.) 1906-1939, 1907-03-02
DEFENSE IN new Line
CONTINUED FROM FIRST PAGE.


Starts Memorable Legal Debate.
The courts attitude created nc surprise.
The defense knew that jurist. whose
official position permits him to judge only
questions of statute law, could not take
any other stand. while the prosecution
depended upon it to help the cause Of the
Commonwealth
Taken unawares. as they were by the
move OF the defense, the prosecuting Off
GERS recognized in an instant the danger
to their case. and Mr.. Keith lost no time
In interposng an objection that stopped
the proceedings for the day and opened
5ombardment between the attorneys that
will live long in the memories of those
within hearing
Dr. Clark was called 10 the stand imme-
diately after the opening Of the session.
After giving a brief summary of his ca
reer, dwelling upon his experience in the
field of mental diseases, DR.. Clark was
asked to listen to a question.
The Hypothetical Question.
Attorney Moore produced several pages
of typewriter matter. which he proceeded
to read slowly and carefully, while the
prosecution sat UP and began TO take no
tice.
The hypothetical question put to Dr.
Moore went back to the beginning Of
things in the Strother story and led on
through the events that eliminated in the
tragedy Of December "a last. 1t was
framed so as 70 set forth the case Of the
defendants in the best possible light and
reflect on the character Of the deceased.
At the close Dr. Clark was asked TO eX-
press his opinion as regards the mental
condition of the men mentioned in the
question at the time of the homicide. or
rather. he was told TO characterize the
act OF homicide
Don't answer that question" shouted
Mr. Keith; Il object, because the ques-
ton does not contain a true statement OF
facts"
Settle Down 20 Battle Royal.
Continuing 10 explain his-reasons for OBJ
jecting. Mr. Keith said that the question
was inadmissible because before such
testimony could be introduced there must
be- some showing Of diseased condition
Of mind in the defendants. The court ex-
cused the jury. and both sides settled
down 10 battle royal
Each OF the three attorneys for the de-
Tense took "A turn at reading the law 10
the court and pleading for a ruling where
by they could secure instructions through
which the jury might BE- permitted TO con-
slider the mental responsibility Of the de-
PENDANTS When the defense was through,
Mr. Keith and his associate, Capt. Mica
iah Wood, entered the lists.
Would Let Jury Judge subject.
Prosecution presented authorities con-
| troverting those read from the defense
In regard 70 the desire Of the defense 10
/ have the jury receive evidence by which
it might consider the mental response
biiity Of the defendants. Capt Wood de
clared that it was unnecessary. that The
/ painful circumstances leading up to tbs
/ shooting were such as to qualify amy anc
/ all Of those twelve honest men 10 de
eide this question without evidence othel
/ than that already introduced.
| Here Mr.. Moore interposed with thu
! suggestion that the defense would with
/ draw Dr. Clark If the prosecution wouls
! agree that the instructions should cove
/ this point. as the defense desired. Capt
/ Wood was unable 10 see it that way, anC
/ the arguments continued pro and cor
/ until both sides rested and waited 70
| Judge Harrison 20 rule.
Expert Testimony Admitted.
The court said that after hearing TIL
/ enIightening arguments Of counse
/ he felt constrained to rule that tn
admission of expert testimony as L
the condition Of the minds Of the de
! fandants at the time OF the homicid,
was allowable. As 10 the various OBJ
/ jections the prosecution had made I,
the wording Of the hypothetical ques
/ ton the court ruled that each side ha,
/ the right TO frame such a question u
| present a fair view OF the case from
| each viewpoint as embodied In the evi
| deEce, but suggested that the attorney
| get together and agree on a hypOtheti
| cal question that should be satisfac
tory to each side the prosecution still
| reserving the right to cross-examin,
the witness and offer hypothetical ques
tions of his own.
Question Satisfactorily Framed.
! y recess was taken while the de
Tense prepared typewritten copies of it
question for the Commonwealth. an
then the court suspended the hearin,
until the prosecution could read tn
question and prepare the amendment
st proposed to make. The recess Taste,
several hours.
When the arguments opened agail
the prosecution read the original ques
tion aloud. inserting its amendments "A
ii went along, the defense acQuiescinl
or objecting as the case might be. an
| the court ruling in the matter. In thi
manner the afternoon dragged on unit
about $50 before the question had bee
framed satisfactorily TO both sides
Substantially, the question remained a
first read, the interlineations of tn
proposition merely making more com
plete statement Of the facts as show
in the testimony.
Defense Is Satisfied.
The attorneys for the defense appeare
delighted at the result of the days work
In speaking Of the matter afterward, on
of the three counsel said:
I'VE knew we needed this to make on
case hold in law. The court could no
have charged the jury to consider tn
/ testimony introduced up to date as justifi
cation for acquittal, no matter hoI
strong a provocation was set up Tn
jury WOULD nave hau TO De instructed
consider the evidence according to tn
law. and return a true verdict, consider
ing the testimony as to the causes of tn
shooting merely as mitigating circum
stances tending to lessen the punishment
Trial May Drag Several Days.
Perhaps the jury would have disre
garded the written law and rendered
verdict on the unwritten code Perhap
they would not. We want to take n
chances. and now We are taking non
that l can see. We can plead with IN
jury TO consider the effect Of the terribl
events leading UP to the killing upon IN
minds OF the Strother boys, and deciG
for themselves whether or not state Q