Evening Star Newspaper, October 10, 1935, Page 16

LA—16 TEAT OF DEESO SUPPIRTS STATE Weight of Evidence Lies With Prosecution, Court Declares. (Conunugj__fiom Pirbeenth Page.) tending to establish his guilt. It was a circumstantial case with the evidence pointing to guilt from so many directions as to leave no room for a reasonable doubt. But apart from this, for purpose of review, the element of reasonable doubt is out of the case. The ques- tion now is, not whether there was reasonable doubt, but whether, in the language of the statue (P. L. 1021, P. 951) the verdict was against the weight of evidence. On that issue the test is whether it is so clearly against the weight of evidence as to give Tise to the inference that it is the result of mistake, passion, prejudice or partiality (State vs. Karpowitz, 98 N. J. law. 546; State vs. Mosely, 102 Id. 94, State vs. Von de Linden, 105 1d. 618, and State vs. Treficanto, 106, Id. 344, 350). Weight of Evidence Declared With State. ‘We consider that the weight of evi- dence was with the State There was an application to this court by defendant for a certiorari based partly on allegation of diminu- tion of the record and partly on matters dehors the record. This was in 10 subdivisions, indicated as A to J, inclusive. A, B and C asked for the opening by the attorney general, the opening by the prosecutor to the jury at the end of the evidence, and the final summing up by the attorney general. ‘These were printed and submitted and have been duly con- sidered. As to the other matters, this court in its discretion refused a certiorari, with rule to take depositions in sup- port of them. They are as follows: D. (1) The daily presence in court of the father of the dead child. This fully appears passim in the record, and Mr. Reilly, in the course of his summing up, addressed Col. Lind- bergh by name. He was a witness for the State, and liable to be recalled at any time. At no stage of the pro- ceedings was it suggested that his presence was detrimental to the. de- fendant. (2) The daily presence of “other prominent persons.not connected with the case, and their close proximity to the jury,” etc. No names are mentioned, and there is no suggestion of any action by the anonymous ‘prominent persons. Such a vague claim merited no recognition, par- ticularly as it is elementary that the proceedings must be public. Holds Judge Curbed Disorders in Court, (e) “The repeated outbursts of spectators in the court room during session.” That such outbursts should occur s not unusual at the trial of a case of great public interest and in a crowded court room. There is again no sug- gestion that suitable measures to con- trol it were not taken by the court. ‘The printed book shows that they were taken, and that for some at Jeast of them defendant’s counsel were responsible, not to mention the defendant himself. (f) Confusion and disorder “reign- ing” in the court room, viz: running about of messenger boys and clerks employed by the press. Without doubt there were messen- gers going to and fro. Again, it was inevitable. The press and public were entitled to reports of the daily hap- penings, and it was quite proper.for the trial judge to afford reasonable facilities for sending such reports. During the trisl the court seems to have taken proper action on its own motion to preserve order, and to have responded properly to any suggestions in that regard. No motion for mistrial or for a new trial on this or any other ground is claimed to have been made. Under paragraph F is repeated the | allegation of “frequent exhibitions of approval and censure or applause at the testimony of various witnesses.” This has already been discussed under E. (g) Stories carried in the press and ®adio broadcasts before the trial and *conveyed to the general jury penel.” If the result of an important mur- der trial is to be nullified by news- paper stories and radio broadcasts, few convictions would stand. 'n Btates vs. Overton, 85 N. J. Law, 287, already cited on another point, we said, on the denial of a motion to adjourn the trial because of & newspaper report, “Of course, a court cannot be put in error by the mere publishing of newspaper reports. ‘While it may be that in cases of public excitement the possible effect of news- yaper articles upon the jury may Justify the court in its discretion in adjourning a trial and summoning sanother jury, it has never in this State been a ground of challenge to & juror that he had read newspaper Teports relating to the case, so iong @s he declares his ability to consider the case on the evidence.” In that case there was a motion for & continuance before the trial really began. In this, counsel go through the trial to the end without a sugges- tion of any such motion and make it after conviction, sentence and writ ©f error. In the Corrado case, 113 N. J. Law &t p. 61, already cited, there was an uproar in the court, an assault and a fzinting spell. The trial went on without objection to verdict and sen- tence. Three weeks after sentence the defendant asked a new trial, which was refused, and we held there was no abuse of discretion, “partic- ularly as defendant was apparently willing to proceed with the trial at the time and take his chances of a verdict.” We see no merit here on the face of things. (h) Failure to sequester the jury. ‘The petition contains certain speci- fications as to how the jury were handled by the officers, where they ‘were lodged and fed during the trial, eand how they were obliged to thread their way through a crowd at times, but it appears that they were con- stantly kept together, were attended by four constables, that they lodged on the third floor of the local hotel and exercised on the porch of the second floor. point from the entrance door. There are other allegations which will not be reproduced, as they are of the T THE EVENING STAR, WASHINGTON, D. C. THURSDAY, OCTOBER 10, 1935. Circulation of Past Twelve Months. Statement of the ownership, management, circulation, etc., of The Evening Star, published daily, and The Sunday Star, published Sunday morning, at Washington, D. C., required by act of Congress of August 24, 1912: Editor, Theodore W. Noyes, Washington, D. C.; business man- ager, Fleming Newbold, Washington, D. C.; publisher, The Evening Star Newsparer Company, Frank B. Noyes, president, Washington, D.C. p Owners: Theodore W. Noyes and Frank B, Noyes, trustees; Frank B. Noyes and Newbold Noyes, trustees; Theodore W. Noyes, Ruth Noyes McDowell and Elizabeth N. Hempstone, trustees; Rudolph Max Kaufimann and Henry G. Hanford, trustees; S. H. Kauffmann and Henry G. Hanford, trustees; Frank B. Noyes, Theodore W. Noyes, Victor Kauffmann, Barbara K. Murray, Fleming Newbold, Ethel Newbold, Grace Adams Howard, Mary B. Adams, Philip C. Kauff- mann, Jessie C. Kauffmann, R. M. Kauffmann, Samuel H. Kauff- mann, Miranda Noyes Pomeroy, Newbold Noyes, George Adams Howard, Ruth Noyes McDowell, Elizabeth N. Hempstone and Crosby Noyes Boyd. All addresses Washington, D. C., except Miranda Noyes Pomeroy, Greenwich, Conn., and Barbara K. Murray, Dunkirk, N. Y. HE STAR FILES P. O. STATEMENT Known bondholders, mortgages and other security holders, holding 1 per cent or more of total amount of bonds, mortgages or other securities, none. Circulation Figures. Average number of copies of each issue of the publication sold or distributed through the mails or otherwise to paid subscribers during the twelve months ended September 30, 1935: Net Paid Circulation Average Net Circulation. aily. Sunday. 121,872 128,971 Net Unpaid Circulation made up of copies given for service, etc.)------- ‘Total Average Net Circulation... (Signed) 1,012 692 122,984 , 129,669 FLEMING NEWBOLD, Business Manager: Sworn to and subscribed before me this 9th day of October, 1935, (Seal.) Jjurors be so isolated that they are out of all sight and hearing. The neces- sary inference from the petition is that such isolation should have been effected in some way not clearly pointed out. But it is sufficient to cite the case of State vs. Cucuel, 31, N. J. Law, 249, as defining clearly the rules to be followed in such case. (1) Supplying meat and drink to the jury after they ,were sent out. This seems universal in modern prac- tice (16 C. J. 1073) by permission of the court, which was presumably ob- tained, as it usually is. (j) (1) Use of magnifying glass by the jury. We see no more objection ELMER F. YOUNT, Notary Public. to this than to the use of eyeglasses by an individual juror. (2) That the jury “were advised that if a verdict was not rendered by a certain hour in the evening, the presiding judge would leave the court house and they would not be able to render a verdict until the following morning under any circumstances.” ‘We quote the language of the peti- tion. We can see nothing in this prejudicial either to the defendant or | to the State. The petition does not intimate who told them. Presumably it was the judge himself. If so, it was simply for their information, and 80 far as appears, without the slightest intimation that they ought to find same general character. Assuming the truth of all of them, Will you let us explain why Williams’ Oil-O-Matic Oil Burners cost less to operate and maintain? RALPH J. MOORE COAL CO. Phone Potomac 0970 She Had Beauty— She Had Brains— What she needed most was courage to live down her mistakes . . . Especially the mistake of having “too many beaus.” “TOO MANY BEAUS" one way of the other, or indeed at all. Every one concerned in the trial, and particularly the jury, knew, from frequent colloquies during the pro- tracted trial, that the judge lived at ‘Trenton, between 20 and 25 miles away, that he came to Flemington each morning and returned each aft- ernoon after adjournment of court. At the termination of the charge the con- stables were sworn at 11:14 am., and the jury retired to consider their ver- dict at 11:23 am. There is nothing in the petition to show what the “cer- tain hour in the evening” was, nor at what hour the jury were “advised” as claimed. It is suggested that this amounted to coercion, but we can see no céercion. ‘Taking the statements in the pe- tition at face value, the incident is precisely similar to what occurred in Berry v. People, 1 N. Y. Crim. Re- stronger, and the Court of Appeals held that it “could not be construed as & threat of imprisonment or pun- ishment (77 N. Y. 588).” ‘The facts are mfly recited in the latter case of People vs. Sheldon, 156 N. Y. 268 at 282. The court there said: “The decision of the court, there= fore, was that there had been no at- tempt at coercion, the language com- plained of not being susceptible of a construction that would give it that effect to the jury.” In that case of People vs. Sheldca, the court was dis- tinguished between Berry vs. People and the case then before it for deci- sion. But the complete and final answer to these allegations of the petition is that they come too late, several months after the trial, and when the case is under review on writ of error. ports, 43. In fact, the language used‘ The judgment of conviction is af- by the judge in that case was even |firmed. SHERWIN- WiLLiams AINT VALUES @ SWP HOUSE PAINT costs less because o IT WEARS LONGER o IT COVERS MORE IT LOOKS BETTER © IT WASHES CLEAN SWP's multi-pigment formula produces the paint job your neighbors envy. Ozlo, an exclusive Sherwin-Williams ingre- dient, gives SWP longer life, better covering and greater pro- tective qualities. Before you buy, let us show you what makes good paint—good. Wen't Shew Heel Marks SHERWIN-WILLIAMS PORCH AND DECK PAINT QUART - 10 Protects your porch from the weather. Easy to apply, easiertokeepclean. 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