Norwich bulletin., 1912-03-04
Trying For Another Spencer Trial
Motion Heard by Judge Crosby Who Reserved Decision
Accused Appeared Calm and Possessed.

against the defendant. Mr.. Stapleton
said that there is no eviderce to show
that St John was ever offered a re-
ward for testifying but that the fact
of his expecting one for doing so casts
strong suspicion over any story told
by him in court.
Mr.. Stapleton said that it would be
argued that the evidence of the aff1-
davits was merely contradictory or
cumulative or both, although he main
tanned that it was not cumulative in
the meaning of the law. Mr.. Callahan
might argue that the court has no
power to grant a new trial on the
ground of cumulative or contradictory
evidence, but the fact is that the court
has the power to grant new trial for
any cause which seems good and suf-
ficient to the court. Our supreme court
has said that new trials may be grant
ed in civil cases where a mistake, ac
cident or other cause in the first trial
has been responsible for a miscarriage
of justice, and Mr.. StapletOn named
one or two cases in which the court
granted new trial on cumulative or
contradictory evidence alone.
At Discretion of Court.
The court should use its power to
grant new trial whenever in its dis
erection 1t appears that a different re-
suit might have been obtained by the
introduction of other testimony. He
asked whether the affidavit of Golding,
Goulding, Culhane and Graham would
not have affected the jury adversely to
st. Johns testimony. No one knows
what weight the evidence Of the con-
Wet had with the jury, and Mr.. Staple
ton maintained that ST. John was
really the most important witness Of
the commonwealth. Who will say that
this man, who claimed to be the init
mate companion of Spencer, did not
have great influence on at least one
juror in making up his mind that
Spencer was guilty of the crime that
would cost him his life? The supreme
court early ruled that in a case where
material witness has not been con-
tradicted at the trial the court would
be justified in considering contradic-
tory evidence If it could be produced
after the trial.
The evidence contained in Graham's
affidavit is not only contradictory but
it is entirely new, for it covers a
period in Spencer's life not covered by
any other defense witness at the trial.
Grahams testimony is not cumulative
for the reason that he tells of facts
that are not alluded to by any other
witness. Mr.. Stapleton asked why
there should be any more hesitancy in
granting a new trial in a capital case
than in a civil case. 1t used to be
thought in England that a man could
not be tried for felony more than
once, for it would put him twice in
| jeopardy, but this has never been adj
mitted by the Massachusetts courts.
Opposed by State.
ii
The court early decided that a new
trial shall not be granted because of
the discovery of evidence contradictory
to that given at the trial The affl-
davits of the three convicts submitted
by the defense were offered merely to
impeach the testimony of st. John, and
under the rulings of the supreme court
no new trial should be granted on this
ground. Mr.. Callahan then made a
number of references to cases in which
this question was raised not only in
| Massachusetts but in many other
states as well. Even an affidavit from
the witness himself, stating that his
testimony is false is no ground for a
new trial (FTetcher against people) I'M
less he states that he has new evidence
which would tend to reverse the YER
dict given at the trial. There IS nc
such condition in the present case by
reason of Which the court would be
justified in granting new trial.
Mr. Callahan rldlculed the idea that
st. John was an important witness.
Judge Crosby said that there is no
question about the power of the court
to grant new trial, but that he would
have to consider the whole evidence
before rendering his decision. Spencer
began to be fidgety until the court an
nounced that no decision would be
Forthcoming until some time in the
future. The hearing ended at 1850,
and Spencer was then taken back to
the jail by Turnkey Wade.