Evening Star Newspaper, October 10, 1935, Page 15

- TEXT OF DECISION SUPPORTS STATE Weight of Evidence Lies With Prosecution, Court Declares. ‘(Continued From Fourteenth Page.) s 381) that there was no foundation ‘whatever in the testimony for a cer- tain stated assumption of facts. But on page 385 the late Justice Beasley said: “It has already been said that it is competent for the Judge presiding at a crime trial to lay before the jury for their consid- eration his own views and inferences from the proofs, and that such ex- pressions, no matter how ill advised or erroneous, can be reviewed on a motion for a new trial, but not on a writ of error, but the defect in this case is that a story is imputed to this defendant and put in her lips which she never uttered, and thus a fact of utmost importance is, @y un- guarded expressions, imported into the testimony, and the introduction among the proofs of such foreign admixture must of necessity be held to constitute error in law.” Some later cases are Engle vs. State, 80 Id. 272; State vs. Simon, 71 Id. 142, where the comments on the judge were conspicuously argumentive in | character, and State vs. Hummer, 73 | Id. 714, where at page 719 the late Justice Garrison quoted from the | opinion by Chancellor Zabriskie in Castner vs. Sliker, Supra, and added: “The notion that it is any part of our Judicial system that the jury, whether in civil or criminal cases, must be | kept in ignorance of the impression | ‘made by the testimony upon the mind of the trial judge is absolutely devoid | of foundation. What our judicial sys- tem does require is not that jurors should be kept in ignorance of the im- pression made by the testimony upon the mind of the judge but that they | should be informed that it is their right and duty to decide for themselves | all disputed questions of fact accord- ing as the weight of the testimony appeals to them” (citing several of the | above cases), and continuing: “In view of these expositions of the law, it must be obvious that legal error cannot be based upon the com- ments in question, and that even | under the broader scope of the pro- | ceedings before us they cannot be deemed to be an abuse of judicial discretion for which a reversal can be had.” The same ruling was made in the Supreme Court in Stage vs. Warady, 77 1d. 348, affirmed here on this point | on the opinion of that court in 78 Id. 687. Rule Held Never Violated by Court. A number of other cases are cited | in the brief for the State, but we deem it unnecessary to multiply au- thorities on a point so conclusively settled. A careful examination of the charge will show that this rule was never transgressed by the trial judge. This whole charge shows signs of having been prepared with great care and without waste of words. It pointed out, and properly, features of | the evidence which by the court were | deemed important for their censidera- tion in getting at the facts. He indi- cated in some cases his individual view, but in no case was that view so placed before the jury as to re- quire them to consider themselves controlled by it. On the contrary, the court was careful at all times to reserve to them the ultimate deci- sion on matters of fact. ‘The second branch of the Point 10 we deem equally without merit. Two paragraphs in the charge are quoted in brief. On the question of circum- stantial evidence the writer of the brief insists “that the eriterion of the proof engendered by circumstan- tial evidence violates the fundamental laws of this State and upsets each legal postulate hitherto imbedded in | our system of criminal jurisprudence. It is destructive of the definition of reasonable doubt and it imposed upon the defendant the burden of prac- tically establishing his innocence to | the satisfaction of the jury.” All that we can say in reply to this is that the criticism appears to be utterly and absolutely unwarranted, and that the omission of the con- nected passage of the charge on the subject of circumstantial evidence and of reasonable doubt has caused | some confusion which will readily be cleared up by reading this portion of the charge as a whele. It seems un- necessary to say anything further on | this point. Hand Writing Comment Declared Legitimate. Point 11 is based upon language of the charge on the subject of ex- pert evidence respecting the hand- writing of letters claimed to have-| been written by defendant. The language of the charge is as follows: “A very important question in the case is, did the defendant Hauptmann write the original ransom note found on the window sill, and the other ran- som notes which followed. Numerous experts in handwriting have testified, after exhaustive examination of ran- som letters, and comparison with gen- uine writings of the defendant that the defendant Hauptmann wrote every | one of the ransom notes, and Mr. Os- | born, senior, said that the conclusion was {rresistible, unanswerable and sverwhelming. On the other hand, the defendant denies that he wrote them, and a handwriting expert, called by him, so testified. And so the fact be- comes one for your determination. The weight of the evidence to prove the genuineness of handwriting is wholly for the jury.” ‘The sentence beginning “numerous experts” and ending with “overwhelm- ing” is selected for specific attack, which seems to consist of the proposi- tion that the court unduly and errone- ously emphasized the value and effect | oo remainin, onost of the handwriting testimony by re- | y g proposition for the ferring to and quoting from the testi- mony of the elder Mr. Osborn (here follows the sentence in question). We fail to see in this anything but legiti- mate comment. Further, under the same point, the refusal to charge requests Nos. 1, 2 and 3, is urged for error. They are as follows: “1. All doubts respecting the com- petency of the opinion of experts in handwriting, based upon mere com- parison, as evidence, have been re- moved by the statute. (Rev. P. 381, Bec. 19), but it must be esteemed proof of low degree. Very learned judges have characterized it as much too un- certain, even when only slightly op- Pposed, to be the foundation of a judi- cial decision. Guerney v. Langlands, 5 Barn. & Ald. 185, Doe v. Sucker- more, 5 Ad. & EL 751, 1 Greenl. Ev. Sec. 80, Note 2, Stark, Ev. 173, Note 3 (30 Equity, Page 201, Mutual Benefit Life Ins. Co. v. Brown.). “2. It has been said by an emi- | to show that he had any interest or | son of handwriting, is most interest- | out such demonstration the opinion | nent law writer with respect to the evidence of handwriting experts {R&t this kind of evidence is most unsatl- factory, very inconclusive, most un- reliable and of the lowest probative force (Moore on Facts, Sec. 15). Jury Need Not Believe In Expert. “3. A jury is not bound to accept the opinion of an expert as to dis- puted handwriting, even when un- contradicted. It should consider it as an argument rather than as proof, and make allowances for all the dis- turbing influences by which the judg- ment of the expert may be moved (1 What. on Ev. Sec, 722)." Theze are copied verbatim in order to make it plain that Nos. 2 and 3 are extracted from legal text books and No. 1 from an opinion by the late Vice Chancellor Van Fleet in 1878. The refusal of No. 2 is clearly sup-~ portable on the ground that it does not pretend to be a direct proposition of law, but merely a quotation from a text writer. No. 3, we think, was adequately covered, if correct, by the broad instruction leaving the weight of evidence on handwriting to the Jury. Request No. 1 is taken, as we have said, from the case of Mutual Benefit Life Insurance Co. vs. Brown, 30 N. J. Eq,, 201. As to this, it should be noted in the first place that the case came to this court (32 Id. 809), which did not adopt the language of the vice chancellor, no further than to say (P. 812): “The-opinions of ex- perts, however skillful they may be, are weaker in degree of certainty than the direct evidence of the subscribing witness, who has sworn to the genu- ineness of both signatures, when he proved the execution. “There is nothing in the evidence motive to swear falsely, or to impugn his veracity.” This is very far from saying that the expert evidence is, generally and without qualification, “proof of low | degree.” In this case the trial judge pointed out, numerous experts in hand- writing had testified that the defend- ant wrote every one of the ransom notes, and only one for the defendant denied this. Handwriting Evidence Upheld for Years. The history of the legitimizing of this class of evidence, i. e., compari- ing, but cannot be considered in ex- tenso here. See Wigm. Ev., section 1991 et seq. But it may well be noted that its legal status was at least very | doubtful until it was authorized by statute in England in 1854 and in this | State for the first time apparently in the revision of 1874. See Rev. 1877, | p. 381. Sec. 19, C. S. 2226, sec. 20. In Gordon's case, 50 N. J., Eq.. 397, | Chancellor McGill, sipting as ordinary, | said at page 422: “Handwriting is an art concerning which correctness of opinion is suscep- tible of demonstration, and I am fully | convinced that the value of the opin- | ion of every handwriting expert as evidence must depend upon the clear- ness with which the expert demon- strates its correctness. (P. 423.) With- of an expert in handwriting is & low order of testimony,” etc. Neither Statement Binding on Court, Neither of the two statements is binding on this court. There was no request to charge the latter, and as to the former, which was requested, we are at least clear that without the qualifying clause of demonstration the defendant was not entitled to have it charged. There was in fact ample demonstration by the experts for the State, and plainly it was satisfactory to the jury, to whose decision the Judge properly left it. 22 C. J. 728. Com. vs. Williams, 105 Mass. 62, 68. We find no error in the refusal of the first request. Point XII also brings up refusal to charge, and is in several subdivisions. The first deals with the charge of reasonable doubt. It was fully and correctly charged. The present com- plaint is that the court did not add a sentence contained in the opinion of the Supreme Court in State vs. Had- ley, 113 N. J, Law, 335, 337. , The trial court in that case had charged that “if the State has failed to prove its charges, and the. defend- ants have caused you to entertain and believe that such a doubt actually ex- ists,” etc. The Supreme Court naturally and properly said: “The duty was upon the State to prove the defendants guilty beyond a reasonable doubt, and no duty was cast upon the defendants to cause the jury to entertain a doubt as to their guilt,” but that was ap- plicable and applied to that particular situation, and the court was very far from holding that any proper charge on reasonable doubt must include the latter phrase. The accredited formula was used in this case, and no such ad- dition was called for. Questions on Venue Settied by Court. As to venue, there were six requests said to have been refused: No. 1. No evidence that the murder was committed in Hunterdon. This is not supported by the record. No. 2. Presumption of death in Mer- cer. This was charged. No. 3. That the presumption was not rebutted. That question was for the jury. No. 4. No evidence of a felonjous striking in Hunterdon. There was such evidence. No. 6. No evidence of completed murder in Hunterdon. This was not required, in view of section 59 of the criminal procedure act. Supra. No. 10. If death occurred in Mercer and it ensued from commission of burglary in Hunterdon, acquit. This was properly refused, as death in Mercer could have ensued from the felonious striking in Hunterdom N. 8. “No evidence that defendant committed or attempted to commit burglary,” etc. There was evidence, as already pointed out. No. 5. No evidence of premeditated murder, and (15) no evidence of murder in any degree. ‘The brief says on this point: “The argument as to the necessity of charging these requests is that, dince there was no proof of the com- mission of the crime of burglary, the consideration of the jury was whether or not a murder had been committed other than one ensuing from the com- mission of a felony. In such a situa- tion it was of course important that the degree of murder be charged under this indictment.” The answer is that, by the statute in this State (C. S. 1832, section 36), there is no need to specify degrees in murder indictments. The argument fails with the statement of its object. No. 19. Presumption of good char- acter. Request. “A presumption of good character always exists as to the defendant and may of itself be suffi- cient to raise a reasonable doubt as to the defendant’s guilt.” Good Character 1Is Held no Issue. No authority is cited for this request, and we know of none. Good char- acter is not an issue until defendant makes it such. He may give proof of good character, subject to rebuttal by the State. The State may not, in the first instant, give proof of bad character, but, in any event, the bad character of the defendant was fully | there were white marks on the top | THE EVENING STAR, WASHINGTON, D. T, THURSDAY, OCTOBER 10, 1935. proved by his own testimony and cross-examination. We see no error in the refusal to change this request. No. 22. The request was that “if there is in the mind of any juror a reasonable doubt of the defendant’s guilt, fairly arising from the evidence in the case, the juror has no right to consent to a verdict of guilty in deference to or from respect to the other jurors’ belief or opinion. Such Jjuror must stand by and abide by his own belief formed in his own mind from the whole of the evidence in the case in which he believes, ‘including the testimony of the defendant.” ‘This was properly refused, as it seems to foreclose any persuasion of a juror by his fellows. The jury sent out for the very purpose of reaching an sgreement, and an individual juror may well conclude that he must be in error when he finds 11 against him, The request was covered by the in- struction, “I 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. 24. 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, it 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 13. The exclusion of the Tartell testimony, The situation was this. A Mrs. Barr, cashier of a movie theater, testified that on November 26, 1933, Hauptmann bought a 40-cent ticket and paid with a $5 bill folded three times 50 as to make eight sections. It was banked by the theater people with other money and the next day, November 27, 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. Lafer Tartell was called to testify that he was a patron of the theater and that she had failed to recognize him, nothwithstanding 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 noth- ing about Tartell, out there was no suggestion of her atiention being called to him by such an incident as a trebly folded bill which turned up the next day in the hands of the police. Point 14. Refusal to strike out testl- mony of Kelly and Maish. The propo- sition is that both were allowed to testify as experts and neither was | qualified. Kelly, a 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 Tested. That he tried again with two sections and found markings the width of the ladder and 1'; to 3 inches above the end when set in the H 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 & conclusion. The motion was denied and exception taken. The | Wwitness went on to testify that the magks were very plain—a scraping mark in the white paint—the gray of | the stone showed through, also that | ends of the ladder—“I would say paint* Jury Was Able To Make Own Decision. The objection was to & conclusion. It was not that Kelly had not been qualified as an expert. Assuming the technical impropriety 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. It 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 XV 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.. It was in the pos- session of Kelly or Lamb of Koenler from that time forward. Lamb was an officer in the State police. Kelly was a trooper and was particularly delegated to the care of that ladder, especially while it was in Washington, where he saw it put in a safe every night and taken out every morning. Koehler was the Government expert. Slight changes were made, as that for some reason & 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 it was found, so testi- fled by Kelly and by Bornmann. All of the changes that had been made were described and had been ac- counted for. As an exhibit, the ladder was sufficiently identifled, and its his- tory was sufficlently shown to justify its admission. The claim that it was not brought home to the defendant is without substance. Point XVI. That the verdict was against the weight of evidence. Defendant’s argument on this point deals principally with the alleged lack of credible evidence tending to show his presence at the scene of the crime on the day of the kidnaping or at any other time, It is maintained that the testimony of Rossiter, Whited and Hochmuth on this crucial issue was either willfully false or the product of morbid or irre- sponsible minds, and that the trial Jjudge laid undue stress thereon, to the great prejudice of the defendant; that not a single readable fingerprint was found in the nursery room or on any of the equipment therein or on the ladder, the chisel or any of the ransom notes; that, on the contrary, Dr. Hud- aon, defendant’s expert, found finger- prints, but none of the defendant’s; that the handwriting evidence was un- reliable; that the testimony of the wood expert, Koehler, was likewise unworthy of eredit in the determina- tion of an issue so grave; that Col. Lindbergh’s identification of the de- fendant by his voice was entitied to little weight; that the evidence of the payment of the ransom its pos- session by the defendant- only { | the Bronx, New York, beneath the |some of the bills was found a small upon the crime of extortion, and that, in any event, the evidence that $2,790 of the ransom money was depasited in the Federal Reserve Bank at the time the gold notes were called by one “J. J. Faulkner,” whose handwriting on the deposit slip was concededly not that of Hauptmann, was & most per- suasive circumstance, and that the testimony of Condon and the remain- ing witnesses was on the whole of such & character, in its material aspects, s not to furnish adequate ground for a verdict of guilty. Cites Circumstances At Time of Kidnaping. Defendant’s reply brief points out that the evidence of Mrs. Lindbergh established that “friendly hands” lift- ed the child from the crib; that “the safety pins still held the covers to the mattress,” and that “there were no bloodstains or evidence of haste anywhere.” The query is put, “How did the kidnaper know that the southeast win- dow led into the nursery or that it was the only window in the room that could not be locked” and it is said that, with a 35-mile gale blowing the defendant did the highly improbable thing of “risking his life” on this frail ladder and of placing “it against the side of the house without leaving his trail imprinted in the soft earth, climbed the ladder next to the top rung, 48 inches below the window sill, and with his left hand opened the shutters in a 35-mile gale, raised the window without the use of a Jimmy or instrument, entered the room alone and obtained the baby.” Attention is directed to the absence of evidence of an “outery or alarm” when the baby was lifted from the crib and carried out the window, as alleged, and the fact that a stein resting on the side of the window sill was not disturbed, that the gale did not dis- turb the note left by the kidnaper, that the closed window and shutters found after the kidnaping demon- strated that “it did not happen that way, that the window was never opened or closed, that the baby never came out of the window and certainly could not have met its death under the window or in the room without leaving some indication somewhere showing where its skull was fractured.” Moreover, it is claimed that there | was affirmative credible evidence of an alibi both as regards the night of | the commission of the crime and pay- | ment of the ransom money. Evidence Found Leading Inescapably to Verdict. Our conclusion is that the verdict is not only not contrary to the weight | of the evidence, but one to which the evidence inescapably led. And, dis- carding the testimony of the witness classified as irresponsible by the de- fendant, the result is the same. From three different and in the main un- | related sources the proofs point un- | erringly to guilt, viz.: (a) Possession | and use of the ransom money; (b) the | handwriting of the ransom notes, and | (c) the wood used in the construction | of the ladder. (A) Bllls totaling $14,600 were found hidden in defendant’s home in | floor of the garage and in the rafters of the dwelling house. In a hidden | recess in one of the rafters containing revolver. On a board in the closet of | the house was found, in defendant's handwriting, the address and telephone | number of Condon. And we have the return of the sleeping suit by the man ' to whom the ransom money was even- tually paid. The explanation of the source of | this money offered by the defendant was incredible, and we find not the slightest evidence to corroborate it. The defendant’s handling of the money makes clear his guilty connec- tion with the enterprise. He was with- out funds before the payment of the | ransom money, and in comparative poverty he worked at his trade, appar- ently, in the light of his subsequent conduct, because it was his only means of livelihood. After the payment of the money he refrained from work entirely and speculated in Wall Street on a comparatively large scale. His actions thereafter are persuasive of guilt. New-Found Prosperity, Antidated Fisch Date. It is clear his new-found prosper- ity was evidenced long before he says he found the money claimed to have been left by Fisch. It is inconceiv- able that Fisch, if he had this money, would have left it in the defendant’s | custody in the manner claimed, par- ticularly when he was planning to leave for Germany on what seemed to be his last trip. He was afflicted with tuberculosis and died shortly after re- turning to his home land. From the foregoing it is deducible, the moral certainty beyond a reason- able doubt, that he collected the ran- som money, and was therefore the | kidnaper, particularly in view of: (B) The identification of the hand- writing on all the ransom notes, in- cluding the one left on the window sill of the nursery window, as that of Hauptmann. The peculiarity of the expression and spelling common to all these notes and admittedly genuine writings by Hauptmann. It is like- wise an inescapable inference that the writer of the ransom note on the window sill entered the nursery and perpetrated the crime. ° . Moreover, we have the chisel found at the scene of the crime. It was of @ size that is ordinarily a part of a carpenter’s tool chest, but was missing from Hauptmann’s set, found in the Bronx home. (C) Part of the wood used in the construction of the ladder was taken from Hauptmann's Bronx home. It is significant that, long before Haupt- mann’s arrest, the wood, or part of it, was traced to a Bronx lumber yard near his home by the expert, Koehler. And there was evidence that Haupt- mann limped for some days after the kidnaping. It is clear the ladder was used to reach the second story. Sound of Ladder Breaking Is Cited. Col. Lindbergh heard the sound of breaking wood that evening, and the ladder was found broken. The wit- ness Sweeny, by actual test. demon- strated that the entry of the seconds story window and the descent there= from with the child could be accom- plished with the ladder. ‘There is no significance in the gelection by the kidnapper of the unlocked southeast window. The thutters, because of warping, could not be completely closed, and it is fair to assume that the intruder se- lected this unlocked window by pure chance, or when he found the other windows barred. And the claim that entry was not Muddy footmarks were found on the window sill and the nursery floor, and a suitcase placed on the floor under the window. Footprints were found outside the window. ‘ The absence of defendant’s finger- prints had no significance. It is clear that this self-confessed and appar- ently experienced criminal would naturally guard against the making of these tell-tale marks of his visit. There was much mx evidence (Continued on Sixteenth Page.) F—NITE Opening Celebration Friday, Oct. 11th—8 P.M. Sam’s Market 1535 You Street S.E. Corner 16thand U Telephone Lincoln 9501 We extend to you, your family and friends a cordial invitation to be present on this occasion. Privately Owned and Operal FREE baskets of Groceries and souvenirs will be given away. 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