Evening star., 1935-10-10

and that this case shows no such ele-
ments of factual weakness as the
Berger case. Other pertinent decisions
are State VS.. Lockmna, SO N. j. law,
1853, and State VS.. Parker, SO i'd, l72.
l76.
At one point in the State summation
there was an interruption and an
objection, as already noted.
A witness named Sisk, sworn for
the State, was under cross -examina-
ton, and testified as follows:
@. Now, isn't it a fact that after
talking to DR.. Condor you had DR..
Condor initiate the voice Of John at
the cemetery and that imitation re-
corded on Victrola records? A. Why,
We
Q. Did, you or not? A. Yes. sir; We
did.
@. Where are those Victrola rec
ords? A. Well, there was only one
record and I believe that is in Wash
ington.
Q. May we obtain it? A. Yes,
suppose SO.
@. Can you get it? A. 1t will take
a couple Of days.
Record Not Placed
Before Jury at Trial.
Mr.. Reilly, alluding to this in his
summing up, said: Il challenged
them-I produced evidence that
Condor repeated as best he could
the voice he heard. and it was made
on a Victrola record. and I chal-
lenged them to produce it, and they
admitted they had it and they don't
bring it in here and they can't bring
in the foot print. Now why? Be-
cause the footprint does not fit the
defendants, even the imitation of
it. And then they talk about JUS
tice. Justice. Hang this man and
cover up our sins"
The attorney general in his reply
said: Then counsel wants TO know
where is the phonograph record.
Did you hear him ask Mr. SiSk Of
the Department of Justice if there
was such a record, and did he have
1t. and would he produce it. Why.
sure, that photographic record has
been alive and awake waiting for
him to call for it. To put his voice
on for you.
II would have loved If you had
heard the story all over again, Con-
don telling about this conversation.
will I burn If the baby is dead?
Are you German, John? No. I am
Scandinavian. Have you got the
money? No. haven't got the money.
Doesn't Col. Lindbergh think we are
the right party?'"
Mr.. Reilly objected that this was
something which he assumes would
be in the record, II 1t was called
for"
The attorney general explained that
he was talking about DR.. Condon's s
testimony. Mr.. Reilly admitted to
the court that he had asked one Of
the witnesses about the record and
would he bring it?" The court ruled
that the attorney general had not gone
outside the evidence, and the defense
excepted.
False Statements
Admitted by Defendant.
But quite plainly what the attorney
general was quoting was from the tes-
timony of Condor. not from phono-
graph record. The substance of what
he quoted will be found in that testi-
mony. The obvious construction to be
placed upon the remarks of the attor-
ney general was that the defense were
afraid to call for and produce the
phonograph record because they felt
that if produced and played before the
Jury it would be found to repeat what
DR.. Condor had testified to in regard
to his interview with the defendant at
the cemetery.
The question whether the record
could have been made admissible as
evidence (see State VS.. Simon, 1l3
N. j. Law, 52l; lis i'd, 20D did not
come up for consideration. We agree
with the trial Judge that counsel was
within his rights in challenging the
failure of the defense to call for the
record as due to fear of what 1t might
and probably would show.
In connection with point l. and un-
der heading of Ia, it is argued that
the attorney general argued with, and
bullied the defendant and other wit
nesses on cross-axamination. So far
as the defendant himself is concerned,
a rigid croSs-examination was fully