Evening star., 1914-04-12

edge on his part of the Importance Of his
testimony, he refrained from coming
forward and making known to counsel
for the defendants or to the district at
.torney what he had heard and observed.
The only reasons he assigns for his
failure is that he was in fear Of his life;
Of whom he was afraid he does not state,
and his failure, where human life was In
volved. to come forward as a witness
until the last hour when opportunity for
examination or contradiction is not given,
is q circumstance of invention so strong
that no reliance can be placed upon his
testimony.
"Burwel testified that when on 4sd
street the morning of RosenthaIs death
who fired the shots turn. He said he
did not know the man. but described to
some extent his personal appearance.
The point of his testimony rests on
defendants was the man who fired the
shots. Burwell never saw any of the
four defendants. and the only knowledge
he has of them was derived from his see
ing some pictures purportins to repre-
sent the defendants, in a clipping from
newspaper.
Not Accurate Identification.
'Tt is unnecessary to dwell for mo-
ment on the utter insecurity Of such tes-
timony as tending to anything like accu-
rate Identification. The mere negative
statement that the man who fired the
shots was not one of the. four persons
whose faces are outlined in newspaper
without any evidence that such outlines
are true and correct representations of
the defendants. and in the face of posi-
tive testimony that the defendants fired
the shots, is worthless Identification from
portraits is itself risky and dangerous,
and without some supporting or connect
ing evidence should not be given much
weight in court of law But ldentlnca-
tion by newspaper cuts goes to yet
greater extreme, and no value should be
attached to II. This witness. like Dres-
ner. maintained silence until the last
hour. Notwithstanding that he knew OF
rhe public interest and excitement in the
Rosenthal case
REQ testified to the delivery of
note from a female friend of Cirofci at
his house The only bearing that TINS
testimony can have Is upon the alibi in
terposed by Cirofici at the trial. Evidence
to sustain an alibi on motion for
new trial. where the altbi has been
passed upon by a jury. is, according to
all the authorities standing alone and
unsupported by unQuestonable proof,
of little or no value This witness, like
the preceding witnesses, did not come
forward until the last hour to give MS
testimony though he had been ques-
toned by a deputy commissioner of po-
lice. to whom he admitted he lied in re-
spect to the delivery of this letter
Testimony of Kalmanson.
-.kaImanson testified that he was in
4ad street. saw an automobile and rec
ognized yallon standing on the running
hoard holding a pistol in his hand. He
Gid 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 Cleveland newspaper PIC
ture purportng to be that OF Harry va
ion The vice of this testimony is similar
70 that of the testimony given by Bur
well before referred to and IS ahke
worthless. This witness also maintained
silence until after the decision OF the
court of appeals in the Becker case.
Briefly have l touched uuon the prn-
ripal point in the testimony OF each OF
these four witnesses. and in doing SO l
have not referred to the testlmony VI
the affidavits in contradiction. nor 10 the
which was produced upon my
mind during their examination and cross
examination That impression was most
of disbelief in what they saio.
II no other circumstance existed put
that of their silence and delay in coming
until the last moment. notwltn-
standing there existed great publlc eN-
element and widespread newspaper re-
ports and comments of which the court
Of appeals has taken ]udleiai notice, II
would of itself be sufficient to create
grave doubts of their truthfulness and
good faith.
A Badge of Distrust.
AT common law convicted man
could not avail himself of motion for
a new trial. That privilege, as it exists
today, is purely a statutory creation
The statute provides that the profered
evidence must be newly discovered since
the trial, that if before received such
evidence would probably have changed
the verdict, and that the failure to pro-
duce it on the trial was not owing to
want of diligence. / cannot say that
the failure to produce the proffered evil
dence on the trial was owing to want
of diligence on defendants part; but
the failure of the witnesses TO COM
municate or make known their testi-
Inony is. in my opinion. badge OF dis
trust and suspicion
1T would be violence to my con-
science and Judgment to say that the
proHered evidence given by the wit
would probably have changed the ver-
dict if given upon the trial which re-
suited in the conviction of the defend
ants.
"On the law and the facts they have
had fair trial, and a jury of their
feliow-citizens has pronounced them
guilty. The court of last resort has
unanimously affirmed that conviction
Appeal has been made for executive
clemency. and in these last moments,
a year and five months after convic-
fion, when the crime itself is almost
forgotten, and human sympathies are
deeply touched at the prospect of four
human beings paying the highest
penalty known to the law. strenuous
efforts are made to arrest the judgm ment
of the law. Were those efforts direct
ed alone to human sympathy there
would be but one answer But they are
not directed to human sympathy.
Justice to Deny Motion.
They are directed to an instrument
OF the law whose sole duty is to ad-
minister justice. and no matter how
harsh it may seem to be- it is never
theless justice to deny the motion"
c. G. F. Wahle. the gunmen's attorney.
was told that the application had been
denied while waiting in the corridor 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
the men and the women in the crowd
broke down and wept They all believed
the gunner would be granted a new trial
When the new witnesses were discovered