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Argument for Defendant in Error.

means, for Clyde has been tried for his life once before. He is a youthful-looking man of light build, a beardless face and a nervous disposition. The crime for which he has just been tried is the killing of a colored man in Oklahoma city over two years ago. Nobody saw him do the killing and the evidence against him is purely circumstantial, but very strong, it is claimed, by those who heard all the testimony.'

The bill of exceptions states that these affidavits and a copy of the newspaper referred to “were offered in open court by the defendant in support of his motion for a new trial and by the said District Court excluded; to which ruling the defendant, by his counsel then and there excepts and still excepts." And the defendant excepted to the overruling of his motions for new trial and in arrest of judgment.

Mr. J. W. Johnson and Mr. T. F. McMechan for plaintiff in error.

Mr. Assistant Attorney General Maury for defendant in

error.

I. The first assignment of error relates to the rejection of the prisoner's offer to prove a statement or declaration of the deceased, John Mullen, made shortly before his death.

For that purpose the defence called Dr. Samuel Graham, the physician who attended Mullen after the shooting. The witness said that he told the deceased “The chances are all against you; I don't think there is any show for you at all.”

This was between 8 and 9 o'clock in the morning, and about 1 or 2 o'clock that day Mullen died. The witness then said that, after making the above statement, he interrogated Mullen about three times as to who shot him, and that he replied, “ he didn't have any knowledge of who shot him."

The question that elicited this testimony was not objected to'by the counsel for the government.

The counsel for the defence then asked the witness whether the deceased, after he had been told by the witness what his condition was, as above, made any statement to Mrs. Hatch

Argument for Defendant in Error.

" as to who it was shot him, or as to what knowledge he had as to who shot him." To this question the counsel for the prosecution objected, stating, “ It has not been proven that the party knew that death was impending.” The question, as thus propounded, was objected to by the prosecution, and the objection was sustained by the court, and thereupon the defence excepted.

The offer to prove the alleged statement of the deceased to Mrs. Hatch, the mother of the accused, came from the defence, and it was incumbent on the party thus offering the evidence to show, satisfactorily, that it was admissible as a dying declaration and was not on the footing of mere hearsay. But Dr. Graham, the witness, was not asked whether the deceased had said or done anything that indicated that he regarded death as impending before or at the time the alleged declaration was made. Why some such question was not put, particularly after the remark of the court that counsel knew he had not laid a proper foundation for the evidence, and that the question was not what the doctor thought, but “what the man thought about it,” is not readily perceived.

It is true that what the deceased said to the doctor about the shooting went in without objection, and without even the usual inquiries from the court as to the circumstances under which the statements were made, but that was no reason why some other and different conversation between the deceased and another person, Mrs. Hatch, should have been admitted over the prosecution's objection.

The point we make is not that the deceased made no remark with reference to Dr. Graham's statement of his condition, but that he made no manifestation of any sort showing that he regarded himself as in extremis. The mere fact that the physician told the deceased that “the chances are all against you; I don't think there is any show for you at all,” shows, as the court remarked, that the doctor didn't have much hope," but does not show that the deceased was without hope. It is never safe to conclude in such cases that the declarant believed death impending because his physician told

See Rex v. Reany, 7 Cox, C. C. 209; Woodcock's

him so.

VOL. CXLVI-10

Argument for Defendant in Error.

Case, 1 Leach, 500; Van Butchell's Case, 3 C. & P. 631 ; Hill v. Commonwealth, 2 Gratt. 594; Donnelly v. State, 2 Dutcher, (26 N. J. Law,) 463, 498, 499, a case in which the late Mr. Justice Bradley bore a prominent part; Regina v. Bedingfield, 14 Cox, C. C. 341; Rex v. Spilsbury, 7 C. & P. 187; Rex v. Hayward, 6 C. & P. 157; Rex v. Mead, 2 B. & C. 605, 608; Regina v. Hind, 8 Cox, C. C. 300; Moore v. Alabama, 12 Alabama, 764; S. C. 46 Am. Dec. 276; Moeck v. People, 100 Illinois, 242.

It would seem that these cases proceeded on a safe principle. To allow such evidence to be received would be a temptation to the unscrupulous to wring from the dying victim some statement favorable to his assailant. It would be a dangerous obstruction to the enforcement of criminal justice if those on trial for murder could shelter themselves behind such evidence.

But the question propounded to Mrs. Hatch was objectionable, also, because of its leading character, and properly ruled out on that ground alone.

II. The remaining assignments of error, except the eighth, may be grouped together and disposed of under one principle.

It will be observed that they are all founded on so much of the bill of exceptions as relates to the denial of the defendant's motion for a new trial and the several grounds thereof. But nothing is better settled than that the exercise of the trial judge's discretion in allowing or denying a motion for a new trial is not reviewable by this court by writ of error.

This court says in Newcomb v. Wood, 97 U. S. 581, 583, 584: “It has long been the established law in the courts of the United States that to grant or refuse a new trial rests in the sound discretion of the court to which the motion is addressed, and that the result cannot be made the subject of review upon a writ of error.” See also Insurance Co. v. Barton, 13 Wall. 603.

A motion for a new trial, whatever be its technical merits, should never be allowed against the real justice of the case. It is because the determination of such a motion involves the exercise of a wide equitable discretion, and requires such an appreciation of the case as the judge before whom it was tried

Opinion of the Court.

can generally, alone possess, that the granting or denying of such a motion will not be reviewed by writ of error. A court of error could not, in many instances, be made to see the case as the trial judge saw it, and therefore could not, in such cases certainly, safely review his action. It follows, therefore, that the alleged misconduct of the bailiff and jury cannot be considered by this court.

It being clear that the judge below was not guilty of an abuse of discretion in denying the motion for a new trial, it is quite unnecessary to inquire whether the affidavits of the jurors rejected by the court were admissible. Should, however, that question be to be determined, the court will be glad to have a reference to the valuable opinion of the Supreme Court of Kansas, in the case of Perry v. Bailey, 12 Kansas, 539, delivered by Mr. Justice Brewer, then a judge of that court.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

The allowance or refusal of a new trial rests in the sound discretion of the court to which the application is addressed, and the result cannot be made the subject of review by writ of error, Henderson v. Moore, 5 Cranch, 11; Newcomb v. Wood, 97 U. S. 581; but in the case at bar the District Court excluded the affidavits, and, in passing upon the motion, did not exercise any discretion in respect of the matters stated therein. Due exception was taken and the question of admissibility thereby preserved.

It will be perceived that the jurors did not state what influence, if any, the communication of the bailiff and the reading of the newspaper had upon them, but confined their statements to what was said by the one and read from the other.

In United States v. Reid, 12 How. 361, 366, affidavits of two jurors were offered in evidence to establish the reading of a newspaper report of the evidence which had been given in the case under trial, but both deposed that it had no influence

Opinion of the Court.

on their verdict. Mr. Chief Justice Taney, delivering the opinion of the court, said: “The first branch of the second point presents the question whether the affidavits of jurors impeaching their verdict ought to be received. It would, perhaps, hardly be safe to lay down any general rule upon this subject. Unquestionably such evidence ought always to be received with great caution. But cases might arise in which it would be impossible to refuse them without violating the plainest principles of justice. It is, however, unnecessary to lay down any rule in this case, or examine the decisions referred to in the argument. Because we are of opinion that the facts proved by the jurors, if proved by unquestioned testimony, would be no ground for a new trial. There was nothing in the newspapers calculated to influence their decision, and both of them swear that these papers had not the slightest influence on their verdict.” The opinion thus indicates that public policy which forbids the reception of the affidavits, depositions or sworn statements of jurors to impeach their verdicts, may in the interest of justice create an exception to its own rule, while, at the same time, the necessity of great caution in the use of such evidence is enforced.

There is, however, a recognized distinction between what may and wbat may not be established by the testimony of jurors to set aside a verdict.

This distinction is thus put by Mr. Justice Brewer, speaking for the Supreme Court of Kansas in Perry v. Bailey, 12 Kans. 539, 545: “Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because being personal it is not accessible to other testimony; it gives to the secret thought of one the power to disturb the expressed conclusions of twelve; its tendency is to produce bad faith on the part of a minority, to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict. But as to overt acts, they are accessible to the knowledge of all the jurors; if one affirms misconduct, the remaining eleven can deny; one cannot disturb the action of the twelve; it is useless to tamper with one, for the eleven

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