The Ely miner. [volume] (Ely, Minn.) 1895-1986, 1912-10-18


not guilty. We have no evidence to
Offer"
Mr.. Theodore Pagan arose then, but
toned his frock coat, thrust his right
hand into its breast, and delivered an
Grafton on homicide. When Mr.. Fa-
gan returned finally. steaming, to his
chair, the judge arose and addressed
the jury
Gentlemen" he said, there is no
more difficult duty than that Of pass
ing upon the guilt or innocence Of one
charged with crime; therefore the
law, out Of an interminable expert
ence, has laid down certain definite
rules by which courts are to be gov
erned in the exercise Of that duty.
These rules are said to be the very
refinement Of reason. They at least
insure certain order and a certain
uniformity OF result not otherwise at
tainable. They are rigid, accurately
determined and binding alike on all
| courts Of justice. 1t is certain that
now and then the observance Of these
permits guilty man to escape pun
| ishment. But. in the mean time, they
are the safeguards Of persons unjust
| ly accused and preserve the innocent
from passion. prejudice or public
preconception of guilt.
"In the case before you, evidence
| has established the violent death OF
| a citizen, and the circumstances at
tendant on it; in fact, the perpetra-
ton OF the highest crime under that
! Of treason. If, in addition thereto,
| proper evidence should be presented
tending to connect the prisoner with
that killing, you would have the right.
under the law. to say whether he is
guilty or not guilty Of the crime. The
assistant district attorney offered the
statement of the deceased, naming
the Marquis Mazaccra. The identity
of that person with the accused is
admitted. This is the only testimony
offered on that point. If it is admis-
sible and proper, the guilt or inno-
cence of the accused will remain with
you to be determined. If not, it be-
comes my duty to take the case out
of your hands and direct an acquittal.
CAS- a general rule of law, one
| speaking against an accused must
first be sworn, and an opportunity
given for his cross-examination before
| his statement can be heard as evil
dence; but there is an exception made
in that certain class of evidence COM
monty named dying declarations, that
is, statements germane to the issue
made by one about to die. Here the
law assumes that man in the imme-
date presence of death will not prob
ably lie, and his statement is admis-
sible as evidence, with the usual pre-
sumption of truth in its favor. But,
it must affirmatively and conclusively
appear that the deceased, at the time
of making such declaration, believed
himself about to die, had, in fact,
abandoned all hope Of life. If he en-
tertained any hope Of recovery, or any
doubt of death, his statement is not
admissible as evidence. 1t is not ma
with the words of the declaration on
his lips, If he did not believe death
impending.
"This is the rule. Let us now apply
it TO the declaration Of Tolman Per
kins: 1T was that Italian, the Marquis
Mabaccra, who did it. When 1 get
well will kill him. Did the decedent
believe that he was about to die when
he made this statement? Had he aban-
doned hope Of life? Clearly not. His
statement itself will establish the con-
trary beyond doubt When l get
we'll l will kill him. Here is more
than hope Of life. Here is a threat
of retribution, based on a conviction
of recovery. This statement of the
decedent is, therefore, not an admis-
sible dying declaration. 1t cannot be
introduced as evidence. 1t is worth
less recital. before the law.
Now, gentlemen of the jury, there
is no evidence whatever, other than
this inadmissible statement, tending
to connect the accused with this homi-
eide. / shall, therefore, sustain the
motion made by counsel for the &C
cused. You are directed to find ver-
dict of not guilty And the Marquis
Mazaccra, alias Ricardo Robini, is dis
charged"
The following morning the district
attorney of New York had his triumph.
His statement to the electorate of the
city marked the greatness of the man;
it was dignified, concise and without
exultation. Being aware that the
statement of Tolman Perkins was not
admissible as evidence, and that the
Italian would be acquitted il seized
and tried, his plan was to set the po-
lice machinery at work on the case in
the hope of finding some evidence
connecting the accused with the crime.
Finally, when the great wave Of public
opinion descended on him, he deter
mined to yield to its wishes and there
by give the people an object lesson, an
example Of the danger Of public clam
or when directed against the admin
! istration of the law. He looked upon
the result as thing not to be de
plored, rather as public good, tend
ing to strengthen the confidence Of
the people in the integrity Of it's pub
lie servants.
| 1t was now clear to me why Ran
dolph Mason had tried to goad the dis
trict attorney into trial. There was
danger in delay, something might be
discovered; but a trial upon the evil
dence in the possession of the people
must result in acquittal, and, If the
man was once acquitted, he could not
| again he tried. no matter what after