The Washington herald. [volume] (Washington, D.C.) 1906-1939, 1907-03-02

Hy stan t1Tll-f slIatut.
Culpeper. Va. March AFTER "A battle
Of words that lasted the entire day, and
during which the jury had a vacation.
counsel for the defense of the Strother
brothers. on trial here for the killing of
William F. Bywaters, achieved victory
to-day that is expected 10 put an entirely
new legal aspect ON the fight for the de-
PENDANTS freedom. and greatly strengthen
their case with judge and jury.
Through the careful and well delibarated
ruling of Judge Harrison. the defense will
now be able 90 add TO its plea of justifca-
ton, under the unwritten law, "a plea
recognized by the statutes whereby the
defendants may bc acquitted on the
ground of emotional or temporary mental
responsibility
Insanity Expert to- Testify.
At the opening of tomorrow mornings
session. Dr Charles Clark. second assist
ant superintendent of St Elizabeth's Hos
pital for the Insane. at Washington. viii
be put on the stand by the defense and
asked long hypothetical question. at the
conclusion of which he viii be called upon
90 give his expert opinion as 10 the con
dition of the minds of the defendants at
the time of the shooting. AS he has been
introduced by the defense. ii IS 90 be ex-
pected that he viii declare James and
Philip SUothcr TO have been, in mis-
opinion. mentally irresponsible.
SeeI. Loophoie for the Jurors.
Through the introduction of this testi-
mouy the defense hopes To be able to
provide a legal loophole for the jury 20 re-
turn a verdict of acquittaL Ii is gener-
ally thought that the defense has made
this move merely for the purpose Of Civ
ing those jurors who. though in sympathy
with the defense and anxious to be elem
ent, have such regard for the law as it
is written that they would not feel justi-
fed in returning verdict of acquittal
on the strength of a plea based solely on
uuwritteu law. a chance TO free the de
PENDANTS ard stil pay homage TO those
quaint and curious volumes of sometimes
forgotten lore. known as the statutes Of
the Commonwealth Of Virginia.
Well DeIiberated Move.
This move on the part OF the defense
was by no means sudden in inspiration.
The three practitioners conducting the
campaign in behalf of the Strothers for
weeks have had this card up their sleeves,
waiting for the proper moment to slip it
into their hands and lay it on the table
TO confound the prosecution.
IN the opening statement the defense
made no suggestion bf their intention. To
be sure. Attorney John /. Jeffries closed
the statement with an expression of the
intention to show that the Suother boys
could not help doing what they did,
but this was taken by the prosecution
and most Of those present 10 mean that
the defendants felt justified in the act.
It now appears that Mr.. Jeffries also
meant that their inability to restrain
themselves was due TO a certain condi-
ton of mental character commonly called
emotional insanity.
Piled Up sympathy Testimony.
When the taking Of testimony began
the prosecution, expecting a defense based
on the principles Of unwritten law alone,
lay back and allowed $4,000 words to be
recorded by the official stenographer. each
sentence of which brimmed over with ap-
peal to the sympathetic side of the jury
men. The State watched the piling up of
this mountain of heart-rending, lachrymal
testimony with little apparent concern.
The Commonwealth attorneys were wait
ing to leap upon this fabric of unwritten
law and tear it to pieces with the force
OF their logic.
In this they counted on the assistance
Of the court. and that they counted not
in vain was borne out to-day by the re-
marks made 10y Judge Harrison at one
stage of the argument over the admissi-
bility Of the experts testimony.
No Unwritten Law tn Virginia.
Commonwealth Attorney Keith had just
the opposing counsel for having
based their defense on unwritten law and
then seeking to saift to insanity Mr.
Keith used the words ''unwritten law.
the first time that the phrase has been
mentioned in the courtroom during the
trial.
Il want to say" spoke up the court.
that so far as any court in the State of
Virginia is concerned. no such law as un-
CONTINUED on FIFTH PAGE.
ReauffFuJ T-IoVrops E-Eo,,-ors NJ