Year: 1860

or tney VIII De considered as waived, ana II


seems to us that this is one of that character.


4th. During the progress of the trial and af-
ter the evidence and argument had closed, the
| tip-staves in charge of the Jury, both of whom


were from the region where the transaction oc-


Cured, and one of whom witness upon


the part of the Commonwealth, mixed and


conversed with the Jurors.


| We cannot discover from the evidence any


misconduct on the part of the tip-staves or


Jurors, such as would warrant the granting of


new trial, nor is there in our opinion any


thing in the evidence to support the next rea-


son assigned, viz that


9Th. Whilst the cause was progressing, du-
ring the intervals between the sessions of the
! Court, the Jurors were accessible to outside
| influences, and persons actually entered their
| room.


9th. While the Jurors were deliberating up


on their verdict, one of the tipstaves was pres


ent in the room.


The testimony of Mr.. Paulhamus fully ex-


plains how this occurred, and we fail to see in


the transaction anything that calls for the
| granting OF new trial. He merely entered
the outside door, ascended the stairway, look


ed into the upper room occupied by the Jury,


and asked for two buffalo robes which were


needed by the owner of the building, and who


requested the tipstave to procure them for


him. No injury could possibly result to the
prisoner from this, nor do we find any rule of


law under which verdict rendered under such
| circumstances would be set aside.


9TH. Because OF errors in the Court, and
improper influences on the Jury.


Upon this general reason it is unnecessary
| to make any comment, and hence we will pass
to the consideration of the Sth and last reason
assigned as follows


Sth. Because the defendant is convicted of
higher grade of murder than he can be gull
ty of under the testimony, and has, since the
trial, discovered evidence to prove that his
mind was incapable of premeditation by rea-
son of intoXcation.


| This proposition has been pressed upon us
with great zeal and earnestness, and calls for
careful and close examination. The first branch
of 1T has been answered by our remarks upon
the first reason assigned, and the latter clause
asserts as a reason for new trial the discovery
of material evidence since the rendition of the
verdict. Mr.. Wharton ,Sin his admirable trea-
tise on American Criminal Law, at page 1880,
says: GA party who seeks for new trial on
the ground of newly discovered evidence is
chargeable with laches, if previous to,the trial,
he knew that the witness, whose testimony he
seeks to introduce newly discovered, must
probably ,:from his continuation and employ
ment at the time of the transaction, the SUBJ
ject of controversy, be conversant with the
facts in relation TO the transaction, and espe-
cially where, previous to the trial, the party
knew, as the witness himself teStiies to, what
the witness could prove, although at the time
of the trial, and while preparing therefor, the
party hsd forgotten the facts" Now apply
this rule to the case in hand. The prisoner,
by his counsel, alleges that he can now prove
by several witnesses that he was intoxicated at
the time the act was committed. Giving to
the prisoner the full benefit of this exception,
We may not shut our eyes to the fact that from
the testimony of those witnesses, the prisoner
must have known at the trial, and while he was
preparing for trial that those witnesses were
cognzant of the facts which he desires to prove
by them. They were present with him, saw
him drink and fill his bottle, and the prisoner
drank twice at the house Of Mr.. Shoff, and
several times with John Gregory. Now when
we consider that this all occurred on the day
on which Mrs. Cathcart met her death and but
few weeks before the trial, and apply to it
the rule of law which we have just quoted, can
this testimony with any propriety be called
sSafter discovered evidence ?'' n o effort was
made to procure the attendance of those wit
nesseS, and the persons who were sworn as
witnesses upon the trial, and who were present
and saw the prisoner and conversed with him,
or heard him converse with others, Immediate
ly or soon after the act was done, were not
interrogated as to his condition at the time
whether intoxicated or sober. Thomas Cath
cart testified that he was there when the gun
went off; Nancy Cathcart swears that she was
there few minutes after, and other witnesses
who came in during the evening, would most
probably have been able to state the condition
of the prisoner; but the question not ask
ed of any of them, SO far as we remember,
except DR.. Fetzer, who says that not having
known the prisoner previously, he could not
say whether he was intoxicated or not. But
the counsel of the prisoner assert that although
the testimony might or should have been known
to the prisoner at the time of the trial, yet
through ignorance or forgetfulness he failed
to communicate 1T to them. This, will be
seen by the rule already quoted, is no ground
for asking new trial. We are clearly of
opinion that the prisoner has not brought his
case within the rules in regard to after discov |
cred eVidence-on the contrary, we are con- |
strained to say that if the rules Of law are OBJ
served,this cannot upon any principle be called
newly discovered evidence.


Again, we are asked to consider in deciding
this motion, that great deal of public preju-
dice and much excitement prevailed at the
time of the trial, and that the prisoner has
consequently been denied the benefit of a fair
and impartial trial. We are not made aware |
of such state OF feeling other than by the /
assertions of counsel, if We except the rumors
that are a1oat as to the feeling in the neigh |
borhood. The Jurors upon being called were, |
at the request of the prisoners counsel, put |
upon their uoir dire, and very few of them were |
found to have formed or expressed any opin- !
ion in reference to the guilt or innocence of
the prisoner. But admitting the fact to be SO,
we cannot see that it affords any reason for |
granting a new trial. If such state of feel |
ing did exist, and the Court had been properly |
informed of the fact, they would, if the re-
quest had been made, have suspended the trial
until change of venue could be had, or some
other steps taken to avoid the difficulty. Bat
the prisoner cannot take his chance OF trial
under such circumstances, and then for that |
reason ask the Court to set aside the verdict |
This view of the case is fully sustained by the
opinion of Justice Rogers in Commonwealth
VS.. Flanagan, w. & S. 419.