The Birmingham age-herald., 1914-04-12

his testimony, though he had been questioned by a deputy commissioner of police to whom he admitted he lied in respect to the delivery of this let ter.
 .Kalmanson testified that he was in Forty-third street, saw an automobile and recognized yallon standing on the running board holding a pistol in his hand. He did not know Vallon. had never seen him and the only means of recognition that he had was that two months later he saw in a C1eve- land newspaper a picture purporting to be that of Harry Vallon. This tes- timony is worthless. This witness also maintained silence until after the de- cision of the court of appeals in the Secker case.
 Briefly have l touched upon the principal points in the testimony of each of these four witnesses; and in doing so I have not referred to the testimony of the affidavits in contra diction, nor to the impression which was produced upon my mind during their examination and cross-eyamina- tion. That impression was most per lsuasive of disbelief in what they said. lf no other circumstances existed but that of their silence and delay in com ing forward until the last moment. not withstanding there existed great pub lie excitement and widespread newspa- per reports and comments,s of which the court of appeals has taken ju- dicial notice. it of itself would be suf- ficient to create grave doubts of their truthfulness and good faith
 Law Involved
 , "At common law a convicted man could not avail himself of a motion for new trial. That privilege as it ex- ists today is purely of statutory crea- tion. The statute provides that the prof fered evidence must be newly discov- erred since the trial, that If before re- eeived such evidence probably would have changed the verdict, and that the failure to produce it on the trial was not owing to want of diligence. l can- not say that the failure to produce the preferred evidence on the trial was ow- ing to want of diligence on defendant s part; but the failure of the witnesses to communicate or make known their testimony, is in my opinion, badge of distrust and suspicion. It would be a violence to my conscience and Judg- ment to say that the preferred evidence given by the witnesses whom l have seen and heard probably would have changed the verdict if given upon the trial which resulted in the conviction of the defendants.
 "On the law and the facts they have had a fair trial and a jury of their fel- low citizens has pronounced them guilty. The court cf last resort has unanimously affirmed that conviction. Appeal has been made for executive clemency, and in these last moments. year and five months after the conviction when the crime itself Is almost forgotten, and hu- man sympathies are deeply touched at the prospect of four human beings pay ing the highest penalty known to the law, strenuous efforts are made to arrest the judgment of the law. Were these ef- forts directed alone to human sympathy there would be but one answer. But they are not directed to human sympathy.
 "They are directed to an instrument of the law whose sole duty is to administer justice, and no matter how harsh it may seem to be it is nevertheless to deny the notion.
 c. G. F. Wahle, the gunmen's attorney was told that the application had been denied while waiting in the corridors of the judges chambers. He immediately went to his office and there met all the relatives of the four gunmen. When he announced that the men must die, both men and the women in the crowd broke down and wept. They all believed the gunmen would be granted a new trial when the new witnesses were discovered
 Judge Wahle declared he would go to Albany early tomorrow morning and would make another personal appeal to Governor Giynn.
 Although we have now practically lost all hope Of saving the men from the chair" said Wahle, ''I shall fight until the end