Evening star., 1945-07-02
AppeaIsCourtUphoIds
Mcfarland Conviction
In Murder Of Girl

Declaring evidence clearly estab-
lished his guilt" the United States
Court of Appeals today affirmed the
District Court conviction of former
Marine Pfc. Earl j. Mcfarland, "a
for the murder of 18-year-old Dor
othy Berrum in East Potomac Park
last october.
Mcfarland now is scheduled to
be electrocuted August 81.
In a "percuriam" opinion Gan
opinion by the court rather than
one written by single justice), the
appellate court said Mcfarland
was ably defended and his counsel
left no stone unturned on this ap-
peal. We have carefully consid-
cred all the points which counsel
raise. We find no prejudicial er-
ror."
Blood Found on Marine.
Relating various contentious OF
the defense, the appellate court told
of blood having been found on Nc
Farland's body after the crime dur
ing examination to which the former
Marine had submitted under mill
tary ORDER.
Though the court ruled out this
evidence and instructed the jury to
disregard it, the jury had heard
something about it and may have
been unable to disregard what they
heard" related the appellate court,
but added it believed this evidence
was admissible.
In this connection, the appellate
court quotel from Supreme Court
decision which said: THE prohibi-
ton of compelling a man in GRIM
inal court to be witness against him.
self is prohibition of the use OF
physical or moral compulsion to ex-
tort communications from him, not
an exclusion of his tody as evidence
when 1t may be material"
Body May Be Examined.
The appellate court then added,
"Out of court as well as in court,
his body may be examined with or
without his consent"
The appellate court held i'm
proper several statements by the
prosecutor, among them a state
ment regarding McFarland's aliases.
On this score the appellate court
said, ITO tell the jury that the
defendant used different names and
that he was charged in this case
with murder and rape was to sug-
gest to the jury, however uninten-
tionally, that he had a criminal
record. This would have been i'm
proper even if it had been ac-
curate.
But as far as appears, the
defendant had no criminal record
and never used different names at
one time. Apparently he did have a
record of juvenile delinquency for
he was in reform school either
once or twice in his boyhood. Be-
cause of that record he dropped his
fathers name of Dills and took his
mothers maiden name of McFar-
land when he wished to enter the
Marine Corps"
Other Statements Censured.
The appellate court found fault
with other statements made by the
prosecutor during the trial and
said:
1T is often said and often for
gotten that the duty of prose-
cutting attorney is not to convict
defendants, but to try them fairly.
Absolute fairness is a counsel of
perfection. But the prosecutor
should hold himself to the highest
practicable standard of fairness. In
this case he failed to do so" added
the court.
In summarizing the issue, how
ever, the appellate court declared
that "his errors do not require and
would not justify a reversal of the
judgment in this case.
Considered in relation to the
entire proceeding, it would attribute
diSproportionate Importance to
them to say they deprived appel
liant tMcFarlanO of fair trial
And they cannot have affected the
result of the trial, for the evidence
of appellants guilt was SO conclu-
sive that no honest and intelligent
jury could have failed to convict
The case was heard in the appel
late court by Justices Justin Miller,
Henry w. Edgerton and Thurman
Arnold. p
Ones of McFarland's attorneys,
p. Bateman Ennis, announced to-
day that he will ask the Court of