The Chickasha daily express. (Chickasha, Indian Territory [Okla.]) 1899-current, 1911-03-24
HOLDS new EVIDENCE IS
NOT SUFFICIENT
Attorneys for Defense Will Appeal to
Higher Court---Howey Goes Back
to the State Prison

According TO the decision rendere
Dy Judge Frank NJ. Bailey this after
noon. Carl Howey, now serving lif
sentence IN the state prison for th
murder OF I'd Morris will not be gran
Cd new trial IN the district c0uri
and his only hope therefore must b
in an appeal to a higher court
Judge Bailey's opinion, which
exhaustive. covering from 10 to
typewriter pages. is based chief
upon the point that the aewly disco
cred evidence Is not sufficient 10 wal
rant a new trial
Il grant TO the witnesses VIII
claim to have seen the deceased a
ter mis- murder absolute honesty an
integrity says the court ~but cha
lenge the correctness of their memor
for the assertions of these witnesses
who testify TO no Dersoaal interes
in Morris and to no special reaso
for being impressed with his persona
ity at the time or their alleged NEE
ing with him. are met BY the declari
tions Of three members of the tamil
Of Morris--his wife. daughter an
brother-who have reviewed the r
mains since this hearing was begu
and who testify positively that If
body is that Of Morris
AS to the part taken BY Col One
and Oscar Simpson, attorneys for q
defense the court says. Il grant
them scrupulous honesty and | COZ
mend their zeal IN behalf OF thu
client. but comparing the new eli
dence with that offered in the tri.
/ am absolutely unable 70 reach all
other conclusions than that original
formed and | must therefore oyerru
the motion for a new trial"
Discussing the law applicable
the case, Judge Bailey says ii is VIZ
settled that four points are to be cd
sidered IN a motion for a new tril
on the ground OF newly discovered q
idence
tij II must be material; 90 IL mul
be such as could not have been o
tanned By due diligence at the fir
trial. fa) Il must not be cumulati'
aud t4) 1t must be such as that il i
troduced there would have been
reasonable probability OF differel
verdict.
Reviewing the evidence pro az
con. the court says it is questionab
II the new evidence offered is nj
merely cumulative since it bears {
the theory originally raised by u
defense, i. G.. that Morris was n
dead. and he also says 1t is questlo
able whether Il could not have bee
obtained for the first trial since Ho'
ey was arrested on June 25, and WI
not tried until October 5, but Il tai
the position that It is not necessa1
to pass on these two questions. II
case should be decided on the bas
or the question: would the new e.
dence change the verdict"
On this latter point the eyiden
is reviewed at length showing the
feet Of the new testimony as to p'
ties who declare they met Morris
ter the alleged killing Some of the
the court says, knew him well in Il
mer years, but have had only Ii
tied acquaintance with him recent
The decision here quotes at leng
from Judge Tuck who says. "A p
son may be mistaken and often is
10 the identity even Of known frie
meeting him too under circumstanC
when one would think a mistake COZ
not occur. Quoting Judge Love,
court says. "The jury must rece
ana consider evidence as to pers
al identity, which is Inconsistent W
other evidence in the case, W
scrupulous care and caution
Other authorities cited are {
grave on memory, "A large proport