The free lance. (Fredericksburg, Va.) 1885-1926, 1907-03-05
"UNWRITTEN LAW"
Judge in CuIpeper Trial Holds
That Such is Not Known to
Virginia Courts.
THE sTROTHER BROTHERS DEFENSE
Will Be Emotional lrsanlty-An Expert
10 Testify-Etc

to Testify-EtC.
In a warm debate between attorneys
for the Commonwealth and the deienst
in the trial of James A. and Philip j
StrOther for the killing of their brother
| in-law, William +. Bywaters, Ia CulpepeT
Friday Judge Harrison gave "A blow To
the doctrine OF the "unwritten law.
The opinion of the Judge was given when
the attorneys were Wranglrng over d
hypothetical question which the defense
wanted to ask Dr. CLARK, of st. Eliza
beth's Hospital, Washington, who was
called ~ al expert on insanity. The in
/ PRODUCTION Of the witness was "a surprise
to commemorative Attorney Keith. Tor
he announced that MIR. Jefiries, OF coun-
sci Tor the defense, had practically said
that he would rely on the 'unwritlen
law
Judge Harrison announced his views
on that subject. Said he:
las reference has been made in the ar
gument 10 the sO-Called "unwritten law
/ cannot let the occasion pass without
saying emphatlcally that no such law is
known In any court IN this Common
wealth, If by such law it is meant that IA
person can take the law into his hand
and right his own wrong, however great
the wrong suffered by him may be- Pro-
vocation, however great, cannot justify
or excuse homicide by responsible per-
son. Ii can only be considered IN mltlSa-
ton OF the ohense. Under the clrcum-
stances IL will reduce murder To man-
l..,F faN
Every rational person must seek re-
dress Tor wrong through the law and
leave hi- vengeance 10 his God.
The entire day was taken up in the de-
bate between the lawyers which resulted
IN decision by the court that IA hypO-
thetica question embracing what were
commended 10 be the essential facts in the
case should be- very carefully drawn.
IL was with much care that the ques-
ton was framed and it is the object OF
defense to prove that the accused mea
were victims of emotional insanity when
they did the shooting, but were sane pre-
viOus to II aud are sane now. IL required
Mr.. Walton Moore, of the defense, fully
20 minutes TO read the question which
was made up largely from the testimony
OF Mrs. Bywaters, James and Philip
StrOther and from 10 "a. III. until after >
D. m. the attorneys added 10 or took
away statements.
DrClark will characteriLe the homicide
the attorneys Tor the defense will picture
70 him, which will be- their version of the
shooting of Bywaters. Crossexamina-
ton OF the prosecution will all hc toward
the end OF showing that James and
Philip Strother were not only sane at
the time OF the killing, but that they shot
Bywaters deliberately.
BOTTs sTROTHER WEEDS.
Aside from the debate, the most inter
esting feature connected with the trial
developed Friday whenit was announced
that Bolts Strother. u cousin OF the
accused brothers, had suddenly become a
bendict He came from Welch. ". Va,
70 attend the trial of his cousins and
Cupid struck him with one of hisciirctlye
darts. Rev. j. ". Wate, who married
Bywaters aud Miss Viola STROLLER. per-
formed the ceremony at noon Friday,
making Miss Helen Johnson, daughter Of
IL. Johnson, OF Cupeper, happy bride.
The wedding took place at the rcctory
OF st. Stephens Episcopal church. Later
the newly married couple lett for Wash
ington on their honeymoon trip.
The unique part OF the marriage, 1t Is
said lies in the fact that neither bride nor
groom had anticipated being married
until Thursday. Then it is declared by
friends of the groom, that marriage
contract was drawn up and signed 10y
Miss johnson and Mr. Stroller OF
course, Miss Johnson and Mr. StrOther
had known each other for years.
OBJECTION TO THE QUESTION.
After Introductory statements had
been elected, Mr.. Moore read his ques-
ton. Mr. Keith aud Capt. Wood OBJ
jected, and a. they began 70 argue Judge
Harrison sent the jury from the court
room. The jury never returned, ana DR..
Clark sat by the witness stand all day.
DENIES iT WAS DELIBERATE.
Mr.. Jeifries, took exception TO the
statement OF Mr.. Keith regarding the
alleged deiiberatiOn with which Bywa.
ters was killed. He declared there was
no idea OF trouble in the minds OF the
Strothers when they went TO their sisters
room TO ascertain what Bywaters In
tended doing concerning his desire To
leave.
Mr.. Jeffries said the men never believed
that Bywaters would try to escape aud
that they felt their warning would
suffice.
Capt. Woods analysed the question
Argument by counselo on both sides con-
tinued until Judge Harrison declared
that the defense could ask DR.. Clark q
hypothetical question covering the testi-
mony of their witnesses, aud after a
number OF objections the question was
gotten into shape.
Mr.. Keith declared it was not case
of sudden emotion, but a deliberate kill
ing. and that the brothers were cool and
deliberate about 1t. Then he called at
tention TO the statement made by Mr..
Lamon. who testified he asked Philip II
his conscience hurt him for what he had
done. and that he received an answer TO
the effect that he would do the same
thing over again.
Then several works on law pertaining
to intanity cases were quoted. 1t was
warm debate, the prosecution claiming
that a man could not be sane moment
before the commission OF crime, sane u
moment afterward and insane at the
time the crime was committed. 1t was
also argued that passion even in fight
was not insanity and that person COM
hitting o crime in that manner was re-
sponsible.
MR.. LEE'smLUsTRATIONs.
Mr.. Lee told of a child who had be-
come insane when a snake jumped at it.
The child, he declared died OF insanity;
A woman, he said, who was frightened
by the sudden appearance OF a negro,
was also driven insane.
HOW QUESTION WAS FRAMED.
Mr.Moore related all the circumstances
OF the case.
Then the question was formed as
follows.
How would you characterize the
mental condition of brothers at the time