The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1907-03-02
PUTS UP EMOTI ONAL
INSANITY DEFENSE
Strother Murder Trial Shifts
from Unwritten Law
HYPOTHETICAL QUESTION
Almost Entire Day In Court Spent In
Arouments-Judge Says There Is
No Precedent In Virginia
for Unwritten Law.

Culpeper, Va, March 1.-The defense
in the Strother trial today shifted from
1.-The unwritten law to emotional insan-
ity,' and almost the entire day was de-
voted to argument the proper form or
a hypothetical question which was asked
DR.. Charles Clark of St I1lizabeth's gov
ernment hospital for the insane in WASH
ington. In ruling that DR.. Clark's testi-
mony was admissible, although the hypo-
thetlcal question should be modified,
Judge Harriso1 referred to the 'unwrit-
ten law" saying with emphasis that If
it is meant that any person can take in
his own hands the righting of his
wrongs. the plea can be offered only in
mitigation of the offense. not in justiil-
cation.
He said that there is no law or prece-
dent In Virginia which to rest plea
of that kind. Judge Harrisons words
seemed to cut the ground from under
the "unwritten law line of defense, and
made it plain that Phillip and James
Strother must submit to other grounds
of defense against the charge of killing
William Bywaters, their brother-in-law
of an hour.
LIT. Utilities H. Slel n Vi ~ AS'ANNSSN-t
government asylum for the insane in
Washington was the first witness today.
Mr.. Moore of the defense submitted
lengthy HYPOTHETICAL question, recitlng all
the facts of the pending case as claimed
by the defense and concluding by asking
witness how ne would characterize the
act of homicide committed under such
circumstances. Before witness could re-
ply Mr.. Keith objected, upon the ground
that the question did not recfte all the
facts and especially that the defendants
were armed, and had all along intended
to do, under certain conditions that which
which they did do.
Jury Withdrawn.
The jury were withdrawn IN order that
the court might near arguments on the
admissibility of the question. me eHort
of the defense to establish emotional IN
sanity as plea evidently dld NOT SUI
prise the prosecution.
After Attorney r. Walton Moore con-
cluded the presentation or his array of
legal precedents to establish the admls-
sibility of DR.. Clarks expert testimony,
Micaiah Wood, for the prosecution, began
an argument against the introduction Oh
the testimony. He argued that inasmuch
as the physician was not acquainted with
the facts In the case he was not eompe-
tent to testify The two Strother brothers
had ample time to contemplate their deed
on the ngiht of the shooting, he declared
and he fact that their act was done de-
liberately showed conclusively that they
suffered no emotional insanity. III these
men are to be freed because their act was
conceived in a frenzy of excitement as
they have said, it will serve to let loose
all the lawless element In this commune
ity, he declared.
Attorney Moore for the defense then
quoted a reference to the case OF General
Sickles. tried in Washington many years
ago for the murder of Barton Key, which
he declared established all the precedent
necessary in the Strother case.
Judge Harrison ruled that Dr. Clarks
testimony was admissible. the hypotheti-
cal questions to be modified.
judge Says No Precedent.
"Some references" said the court, has
been made to the unwritten law. l want
to say most emphatically that so Tar as
any court in this state is concerned, tnere
Is no law or precedent on the SUBJECT IL
by that is meant that any person can
take in his hands the righting OF MS
wrongs. This plea can only De SUP
mitted in mitigation of the onense' not III
justification. That question Is not pre-
scented here.
The court can simply lay down the
rule of law, that no matter how great
the provocation may have peen IL Inc
offending person is of responsible mlho
and capable of responsible actions those
acts can only be considered IN mltiga-
tion of the offense and not as an excuse
or Justification.
He added that the question of insanity
often had been deliberately argued before
him and that he had long since reached