The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-06-20
NOVEL POINTS OF THE LAW.

NOVEL POINTS OF THE LAW.
In his opinion concerning the Charles
Becker case Chief Judge Bartlett said
concerning the refusal of the trial Justice
to admit the e~xculpatlng confession OF
Frank Cirofici. made just before he went
to the electric chair:
1T IL generally believed that a sense
OF speedily impending death operates tu
Induce one to tell the truth, and we are
asked to hold hat this influence would
be Just as effective in the case Of any
witness who is about to die as It Is
deemed TO be In the case OF the victim of
n homicide. Whether this view he cor
rect or not, the in which the rule
as to dying declarations has been dealt
with by the courts N the Legislature In
this State indicates that II may not be
broadened except by statute. As to the
argument in favor OF enlarging II 20 as
to admit evidence Of such declarations
as that alleged to have been made by
Dago Frank, 1t may be observed that the
influence Of approaching death might be
very different In the case OF an innocent
victim OF crime from what II would be In
the case Of a guilty murderer condemned
to die. Unless numbers OF innocent men
have suffered capital punishment In this
country. many criminals nave gone to
the gallows with a lie upon their lips.
The existing rule. with Its strict limita-
tions. has been introduced into India,
where II appears to have worked badly,
according to Mr.. Justice Stephen, who
says I have heard hat IN the Punjab
the effect OF II is that a person mortally
wounded frequently make IA statement
bringing all his hereditary enemies on
10 ~ 90 "
his wound. thus using his last opportu-
nifty to do them ar injury. A remark
made or the policy of tho rule by a
native OF Madras shows how differently
such matters are viewed in different
parts of the world. such evidence"
he says ought never to he admitted in
any case. What motive for telling the
truth can any man possibly have when
he is at the point OF DEATH
Il Stephens Hist. Grim. Law of Eng
land. AS. i49). Mention is made OF
these divergent views merely to show
that the admission OF dying declarations
even to the extent to which they are now
received IL not universally approved,
and the courts should he cautious lest
they enlarge the rule by judicial con
struction."
The New York Ldw Journal says con
the ruling by the Court Of APP
THE present opinion of the Court OF
Appeals Is in salutary contrast with the
decision OF the Supreme Court OF Kan
sas In Thurston VS.. Fritz Gas Pac.,
$3.50. holding hat dying declarations
should be admissible even In civil cases.
This decision follows a suggestion Of
Prof. Wigmore- SO far as we know, the
only converts TO the learned professors
eccentric view are the members OF the
Supreme Court OF Kansas"
In Lambrecht vs. Schrcyc-. in the
Supreme Court Of Minnesota MAY.
1915, lj2 y. w. 6ij). It was held that
n horse driven by another from
malice. wantonness or recklessness so
that the driver is injured. is an assault
that one who whips up his own
horses to great speed and passes the
team OF another, driving near and yell
ing loudly. II such acts are done reck-
lessly and in such manner as 10 be
likely to produce injury. and so tina,
do cause Injury. commits an assault.
In case before the Supreme
Court OF South Carolina in the matter
or Percivals estate the court held that
petitioners asked for the exhum
Ing OF the body of decea sed to enable
them by means OF Identification marks
thereon TO show heirship and thus de-
feat proceedings to escheat the estate
OF the deceased and where the presump-
ton was raised that the relation be-
tween one OF the petitioners and the
was that OF parent and child,
lower court had properly ordered
hat the body OF the deceased should be
aNhln1ad thu anNli.a slar halo -
OF the alleged mother Of the de-
The New York Ldu Journal SAYS tina,
the decision Is OF value in arord!ng an
precedent in a subject as 10
which there Is not much %author!ty IL
may be said that this decision could be
where persons near OF kin 10
the deceased object 10 exhumat!on OF
the remains" one OF the few prece-
dents cited is a decision by the United
Circuit Court. district OF Kan.
las, in Mutual Life Insurance Company
vs Griesa. In which IL appeared that a
bill In equity had beer filed 10 cancel a
insurance policy and also a suit a,
to collect the policy. The widow
was not a party In the action at law
by the executors. but was a de-
in the equity suit. Upon an ap.
being made to exhume the re-
mains OF decedent the court held
that there was an insuperable objec-
In the law action because the
widow. who legally had control OF the
body. was not n party TO II. but that IN
the equity action. in which the issu,
suicide was material. II was held tnat
the order OF exhumatIon should be
The court said:
Can any one doubt that all sentiment
would dlssipate and all objection would
II II were necessary for the es-
tate to make the showing in order TO
recover the large sum OF money in
And why should II b. optional
with one party 10 say what part OF the
ruth shall be made known and what
kept from the court?
THE order will he that the marshal Of
his district will exhume the body. The
'ourt will appoint a pathologls, 10 en-
anime the body to the end that the evil
ience may he had as TO whether the fail
oiled the insured. A chemist will b. APP
10 determine whether he died by
morphine poison. The result, OF their
ought materially to aid the cour,
n arriving AT the truth, And such an
rider Is made because this court IL of the
that II cannot be made In the
'ct'on AZ law. but holding that IL is
the general powers OF n court OF
and fhat such ar order Ia in the
urtherances Of Justice"
The right OF n person who had muir
Tered his father. mother AMI sister 10
inherit their property was before the
Court OF Illinois In Wall W..
IN which II was contended
hat since the Illinois statutes Of de-
cent did not expressly exclude from It's
one who became an heir b. :
eason Of n murder committed by him. /
q could not be- haired from taking hIs