The Montgomery advertiser., 1907-03-02
FOLLOW IN DELMAS' STEPS Insanity Plea Entered
 by Strothcrs. JUDGE ADMITS EVIDENCE Delivers Blow, However, to Un- written Law Testimony. Says This Can only He Taken in sfiti- gation, and Not in Justifea-
 tion of Any
 Crime.
JUDGE ADMITS EVIDENCE

wealth Attorney ]. A. c. Keith today began the presentation of his evidence In rebuttal in his attempt to shatter the plea of justification advanced by the defense for James A. and Philip Strother on trial here for the murder of William F. Bywaters. their brother in-Iaw.
 The rebuttal will begin immediately after the defense has called to the stand Dr. Chelf, one of the physicians who attended Mrs. Viola Bywaters at "Rotherwood," the Strother home, who was declared by her brother to nave been the victim of a criminal operation in Washington at the insistence or Bywaters.
 Prior to adjournment yesterday af- ternoon Judge Harrison stated that he was desirous of expediting the trial. and with this understanding the coun. seI for the defense agreed to complete their case without delay.
 The Commonwealth attorney has ad- vised the court that the State expected to complete its rebuttal in one day. Dr. Charles H. Clark of St. Eliza beth's Government Asylum for the In- sane in Washington, was the first wit ness today.
 MT. Moore of the defense submitted a lengthy hypothetical question. recit- ing all the facts of the pending case as claimed by the defense and conclud- ed by asking witness how he would characterize the size of homicide conn mitted under such circumstances. Be- fore witness could reply MT. Keith ob- jected upon the ground that the ques- ton did not recffe all the facts and especially that the defendants were armed and had all along intended to do. under certain conditions. that which fhey did do.
 The jury was withdrawn in order that the court might hear arguments on the admissibility of the question, The effort of the defense to establish emotional insanity as q plea evidently did not surprise the prosecution.
 After Attorney R. Walton Moore con- | cIuded the pfeSentation of his array of legal precedents to establish the ad- instability of Dr. Elark's expert testi- mony, Micajah Wood. for the prosecu- ton began an argument against the introduction Of the testimony.
 He argued that inasmuch as thea phy sician was not acquainted with the facts in the case he was not competent to testify. The two Strofher boys had ample time to contemplate their deed on the night of the shooting he de- clared and the fact that their act was done deliberately showed exclusively that they suffered no emotional insan- ity. "If these men are to be freed be- cause their act was conceived in a frenzy of excitement as they have said It will serve to let loose all the law less clements in this community" he declared.
 Attorney Moore for the defense then quoted a reference to the case of Gen. eraI Daniel k. Sickles, tried In Wash ington many years ago for the murder of Barton Key, which he declared es- tablished all the precedent necessary in the Strother case.
 Judge Harrison ruled that Dr. Clark's testimony was admissible, the hypo- thetical questions to be modified.
 Some reference,v said the court, "has ben made to the unwritten law. I want to say most emphatica!iy that so far as any court in this State is concerned there Is not la war precedent on the subject If by that is meant that any person can take fin his hands the right ing of his wrongs
 "ThIs legislation can only be sub mitted in mitigation of the offense, not in justification. That question is not presented here. The court can simply lay down the rule of law-thet no mat ter how great the provocation may have been if the offending person is of responsible mind and capable of re- sponsibla actions these acts can only be considered in mitigation of the off, fense and not as an excuse or justihea- tion."
 He added that the question of tn- sanity often had been elaborately ar Rued before him and that he had long since reached conclusions about 1t. Tn substance he thought that these are matters of fact"
 The test should always be that laid down in the De Jarrette case" He did not, he said. think the question was in the province of the court to decide IL was for the jury to decide whether at the time the act was committed the narty was responsible or not
 Luncheon recess was then taken.
 When the afternoon session began. the prosecution requested time to ex- anime the hypothetical question to be nut to pr. Clark. A delay of over an hour resulted, and then Commonwealth Attorney Keith moved to modify the question. saying that there were 500 many deductions in the question to make 1t fair.
 Jurde Harrison ruled that the defense might make deductions within the evil dence. After further argument. the hypothetical question was admitted. The argument, however, had consumed foo much time to permit of the exam ination of Dr. Clark to be resumed, and court adfourned.