Atlanta tri-weekly journal. [volume] (Atlanta, Ga.) 1920-19??, 1924-08-02
BARROW ANSWERS
STATES ATTORNEY
IN TESTIMONY ROW
Continued From Page y


ran along lines similar to the
Franks case so far, and it indicated
that alenist testinlny in mitiga
ton of punishment had been heard
bv that court.
Judge Caverly said that in the
Pennsylvania case it was held that
plea of guilty automatically made
the crime second degree murder. He
said it was held that the state might
then introduce testimony to raise
the offense to first degree murder
"Wel, we have raised the Offense
in this case" interjected Robert f.
Grove, states attorney, land un-
derstand it.
Il just wished to make that point
clear" said the court.
Clarence S. barrow, chief counsel
| for the defense, wanted a time limit
put upon the arguments as to ad-
INSTABILITY of alienist testimony,
saying that cases the state thought
might parallel the present case could
| be read until doom's day" without
progress.
Mr.. Marshall insisted that the
state did not object to presentation
! of alienlsts testimony as such.
THE state does not object to
alienists's testimony if the proceed
| ings are at the correct stage for re-
ception Of such testimony" he ex-
| planned. Under the law, insanity
| is a defense, and unless it is so Of
! fered alienist testimony Is not ad-
| missable.
Here we have on the court rec
ords a confession, meaning the high
est order Of conviction, a plea of
guilty"
Sanity Test Jury's Job
! Analysing the present situation,
| he said that the mental disease testi-
mony which the defense was offer
| ing was the foundation of legal in
sanity. Legal insanity decides re-
, sponsibility for crime" he said
First, then, they plead guilty,
acknowledge guilty responsibility,
then offer in mitigation of punish
ment testimony which tends to re.
move that responsibility"
He emphasized again that the
question of sanity is one for a jury
! to determine.
Under the offer Of testimony
made by counsel" continued Mr..
| Marshall "and accepting it at its
face value, the estimate by the de-
| Tense that something less than in
sanity will be shown, we find that
courts have rejected evidence Of
weak-mindedness where the de-
| PENDANT is not idiotic, lunatic or in
| sane"
Not in Illinois," interjected Wal
! ter Bachrach, of defense counsel.
you think not?" responded Mr..
Marshall. We'll, we don't agree
with you"
"All Nonsense" Says barrow
| Mr.. Marshall read further cita-
| tons in support of his contention
that "depravity of character and
| abandoned habits are not evidence
of insanity, neither is the commits
sion of an unnatural and atrocious
crime"
We'll, If such depravity is not an
evidence of insanity, then is it not
proper for a court to consider it
merely as mitigation Of punish
ment?" asked Judge Caverly. Mr.
Grove jumped into the argument,
saying it was mitigation of crime
perhaps but not punishable"
That is all nonsense, your honor"
said Mr.. Darrow, cit is competent
to determine the effect upon the
mind of the defendant and that is
ALL"
What Is Mitigation?
rs there any mitigation In the
wOrld?" Mr.. Darrow asked Ma
Grove.
Yes" replide the prosecutor,
proceeding to explain that If a man
killed another because of a family
affair there would be mitigation.
That's all bosh," said Mr. Oar
row. THAT is talking about the un.
written law, and there is nothing to
it here"
The clash was precipitated when
in reading from the Alabama law
Mr.. Marshall reached IAN irresist-
ible impulse is not a defense" The
defense muttered from it's seats that
the same did not apply in Illinois,
and the prosecution and defense dis
puted as to whether Mr.. Marshall
had been asked by the defense to
read from the Illinois records a case
in which it had been held that ode
pravity OF character and abandoned
habits" do not constitute insanity.
IF the defense tried to show a
depraved act, how are you going TO
prove it?'' asked Mr.. Grove of the
court. Are they going to prove it
by alienists? Are they going to pro-
duce some one to say, I saw de-
PRAYED act committed?' That would
be hearsay and incompetent"
Groves Day on Bench
Messrs. Bachrach and Darrow ask
ed Mr.. Grove at the same time if.
when he occupied the position now
held by Judge Caverly, he had not
heard expert testimony in the case
OF Thomas Fitzgerald, who attacked
and murdered Janet Wilkinson.
Il did not" the prosecutor replied
with determination.
'Oh. yes you did" chorused the
defense attorneys.
Il remember" Mr.. Grove said,
that one alienist testified about
perversity and also I remember that
Fitzgerald was found guilty of first
degree murder and hanged"
Yes, but you sentenced him." re-
torted Mr.. barrow.
Everybody laughed but only for
a moment.
Proceed with your argument"
Judge Caverly instructed the state.
Mr.. Marshall read for a few mo-
ments and then the court declared
a recess for five and only five min
utes."
Mr. Marshall went to England for
further authorities, citing a decision
rendered in 1850.
why so ancient?" suggested Mr..
barrow.
well, it lays down the rule I am
i0+o 40 ba1
will now. read an English decision Of
l. - IL.