Evening star., 1935-10-09

The court, commenting upon tn
defense contention that Attorney Gen
eral Wilentz offered varying the.
ories as to how the child died, saic
that was not harmful to the defendant
The case, the court observed, was sub
| mitted by the court to the jury on tht
theory that the child died in a fall
The court held that the claim tha
Hauptmann's constitutional rights un
der the fourteenth amendment wer,
violated was without merit.
Ruling on the defense contention
that the case should have been tried il
Mercer County where the body va!
found instead of in Hunterdon Coun
ty, site Of the Lindbergh home, tht
court said there was evidence to SHOW
| the fatal blow as inflicted in Hunter.
don.
The court also held that "a charge
basing guilt of murder in the frs
degree on elements including those o.
common law burglary in the course
Of which the homicide was com
| mitted" was not erroneous, though i
referred to a statute which also in
cluded the elements Of common Law
burglary without mentioning tha
crime in the text thereof"
The defense had argued at the ap.
peal hearing that there was no evi-
dence Of burglary since the value Of
| the sleeping garment was not men,
toned and it was indeed virtually
worthless and not worthy the consid-
Grafton Of a burglar.
The stealing of child" ruled the
court, and its night dress from its
home, followed by the surrender oi
the night dress merely as proof that
the kidnaper had the child and tc
induce negotiations fo- its ransom
held to be indicative of an intent tc
commit larceny and to constitute that
/ crime"
Speaking further of the statute, th'
court said:
Evidence held to justify the jur.
in finding that the burglary, If com
mitted, was not complete at the tim
Of the homicide.
Murder" the opinion continued
may be committed in the perpetra
ton of a burglary though the bur
glary as such may be complete TO
purposes of prosecution. If the homi
eide be committed in the res gesta,
Of the felony"
Jury Charge Defended.
The court also defended Justicr
Trenchard's charge to the jury.
1T Is always the right. and Otter
the duty, Of q trial Judge to commen
on the evidence and give the jury tn,
impressions Of its weight and value
and such comment Is not assignablt
for error so long as the ultimate de.
cision on disputed facts is plainly lef
to the jury" the court said.
The defense, in arguing its appeal
had stressed Justice Trenchard',
| charge, emphasizing the fact that ht
had stressed certain points in a man.
ner construed by defense attorneys a!
unfavorable to Hauptmann's case.
The court said the charge on the
circumstantial evidence was "fret
from error when read In its entirety.
1t held also that Justice Trencharc
was justified in refusing to tell the
jury that the opinion of the hand
writing experts, based on mere com.
parison must be esteemed proof o.
low degree" as the defense claimed.
The comments of Justice Trencharc
on the expert evidence were entirely
proper, the court said.
The admission of the kidnap laddel
as evidence was proper also. the opin'
ion said. The defense had fought ad'
mission of the ladder from the frs
day it was brought into court.
The verdict was not against thu
weight of evidence" the opinion sale
on point l8 of the appeal.
Nor could it find any legal error ir
Col. Lindberghs daily presence In the
court, nor the presence Of other
prominent persons not connected
with the case"
The frequent demonstrations in the
court, the laughter, whispers anc
chuckles of spectators had no effect
on the verdict. the court ruled, since
Justice Trenchard properly rebukec
those responsible, the opinion said.
Excluding Testimony Upheld.
The opinion held that the testimony
Of Joseph T. Tarten of New York was
properly excluded. Tartell was the
witness, produced by the defense ir
an attempt to impeach the memor!
of Mrs. Celia Barr. ticket seller at the
Greenwich village motion picture
theater, where Hauptmann allegedly
passed a SIS ransom bill on the night
of November 26, 1888.
Likewise the opinion held that the
movements Of messenger boys and
clerks in the court could not con-
stitute legal error. Nor did the court
find anything irregular in the conduct
of the press in its reporting of the
trial, nor Of the radio broadcasts.
No objections were voiced against
these at the time, the opinion said.
Attorney General Wilentz called
from court in New Brunswick, where
he was engaged in q case, expressed
surprise that the ruling was given to-
day. He said he would make state
ment later.
In view Of today's decision. Haupt-
mann will be resentenced to death by
Justice Trenchard, possibly within two
weeks.
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