Evening star., 1935-10-10

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cross We see no error
in the refusal to change this request.
No. %. The request was that IF
there Is in the mind of any Juror
O reasonable doubt of the defendants
guilt, fairly arising from the evidence
in the case, the juror has no right to
consent to o verdict of guilty in
Difference to or from respect to the
other jurors belief or opinion. Such
Juror must stand by and abide by his
own belief formed in his own mind
from the whole Of the evidence In the
case in whi.h he believes, including
the testimony Of the defendant"
This was properly refused, as it
seems to foreclose any persuasion Of
Q Juror by his fellows. The jury sent
out for the very purpose of reaching
an agreement, and an individual Juror
may well conclude that he must be
in error when he finds II against him.
The request was covered by the in
struction, II am requested to charge,
and do charge, that each juror must
reach his own judgment after discus
sion of the facts with his fellow
jurors"
No. "a. Request that from any
number Of. theories Of guilt and only
one of innocence. the jury should adopt
the latter theory.
Our reading Of the colloquy between
court and counsel indicates that any
exception prayed was withdrawn. No
exception being sealed, 1t fails as such.
1t is not contained In the causes for
reversal. Moreover, it is fully charged
in effect so far as concerned circum-
stantial evidence.
Tartell Testimony Held
Properly Excluded.
Point Is. The exclusion of the
Tartell testimony. The situation was
this. A Mrs. Barr, cashier Of a movie
theater. testified that on November 26.
1888, Hauptmann bought a Accent
ticket and paid with a S. bill folded
tnree times so as to make eight
sections.
1t was banked by the theater people
with other money and the next day.
November 81, she had a visit from
Lieut.. Finn Of the police, who had the
bill with him. She was tested on cross
as to Identification, but nothing was
said about Tartell by name or other
wise. and Mrs. Barr was dismissed.
Later Tartell was called to testify
that he was patron Of the theater
and that she had failed to recognize
him, notwithstanding some contro-
versy about wrong change or the like.
We think that this was wholly
irrelevant and properly excluded. Not
only had the witness been asked moth
ing about Tartell, out there was no
suggestion Of her attention being
called to him by such an incident as a
trebly folded bill which turned I'D the
next day in the hands Of the police.
Point IA. Refusal to strike out testi-
mony Of Kelly and Maish. The propo.
sition is that both were allowed to
testify as experts and neither was
qualified.
Kelly, State trooper, sworn, said
he specialized in identification, had
examined the ladder for finger and
other marks. That he placed it
against the house in three sections,
but found no marks where the top
rested. That he tried again with two
sections and found markings the
width Of the ladder and 1l2 to 2
inches above the end when set in the
mudholes. The marks were right
with the ladder. Q. What kind of
marks were they? A. Ladder marks"
Mr.. Reilly moved to strike this an.
sWer out as q conclusion. The motion
was denied and exception taken. The
witness went on to testify that the
MARKS were very plain-a scraping
mark IN the white paint-the gray of
the stone showed through, also that
there were white marks on the top
ends of the LADDER would say
paint"
Jury Was Able
To Make Own Decision.
The objection was to q conclusion.
1t was not that Kelly had not been
qualified as an expert. Assuming the
technical improperly of the state
ment that they were ladder marks"
the other testimony put the jury In a
position to form their own conclusion,
and they had the ladder In evidence.
AS to Maish. He had made the
baby's thumb guard and said It
would not rust. On cross, his au-
thority as an expert was seriously
impaired, but the testimony was in
and was completed; the witness was
dismissed, certain exhibits were
marked. The court adjourned for the
day and reconvened next morning
after Maish had presumably gone
home to Wyoming, Ohio, and then
counsel for the first time moved to
strike the testimony out. The court
denied the motion on the merits.
1t Is sufficient to say that it came
too late. Moreover, the motion made
the next day was to strike out the
Maish testimony in toto. Part of it
was clearly competent. And for that
reason also the motion was properly
denied.
Ladder Declared
Proper Evidence.
Point XIV is that the ladder was
improperly admitted in evidence.
The ladder was found near the
Lindbergh house on the night of the
crime by Bornmann, a member Of
the State police. He turned it over to
Kelly on the spot. 1t was in the pos
session Of Kelly or Lamb OF Koehler
from that time forward. Lamb was
an officer In the State police. Kelly
was trooper and was particularly
delegated to the care Of that ladder,
especially while 1t was in Washington,
where he saw 1t put in q safe every
night and taken out every morning.
Koehler was the Government expert.
Slight changes were made, as that for
some reason q new piece was affixed
and perhaps some nails were not the
same, the ladder having been taken
apart for the purpose of examination.
But the ladder was substantially the
same as when 1t was found, so test-
1 A