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Chester GILLETTE

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: The victim revealed that she was pregnant and began pressuring Gillette to marry her
Number of victims: 1
Date of murder: July 11, 1906
Date of birth: August 9, 1883
Victim profile: Grace Brown (his pregnant lover)
Method of murder: Knocking her out with a tennis raquet and allowing her to drown
Location: Herkimer County, New York, USA
Status: Executed by electrocution in Auburn Prison on March 30, 1908
 
 
 
 
 
 
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Chester Gillette (August 9, 1883 - March 30, 1908), an American convicted murderer, became the basis for the fictional character Clyde Griffiths in the Theodore Dreiser novel, An American Tragedy.

Gillette was convicted of murdering his girlfriend, Grace Brown, by knocking her out with a tennis raquet and allowing her to drown. Grace Brown had revealed her pregnancy after a concealed year-long relationship.

After taking Brown out boating in 1906 in Big Moose Lake in Herkimer County, New York, Gillette returned alone, and gave varying explanations for what had occurred. Brown's body was found the next day, and Gillette was arrested in nearby Inlet.

Gillette was executed in 1908 in Auburn Prison by electrocution.

 
 

Chester Gillette (August 9, 1883 - March 30, 1908) was an American convicted murderer. He was convicted of killing his pregnant lover, Grace Brown, although some of the circumstances surrounding her death are ambiguous. The trial became a public sensation, particularly when her letters to him were read aloud in court.

Gillette became the basis for the fictional character Clyde Griffiths in the Theodore Dreiser novel, An American Tragedy, which in turn was the basis of a 1931 Paramount film An American Tragedy and the 1951 film A Place in the Sun. Another book featuring Chester Gillette is A Northern Light by Jennifer Donnelly.

Background

Gillette was born in Montana, but spent part of his childhood in Spokane, Washington. His parents were financially comfortable, but deeply religious, and eventually renounced material wealth to join the Salvation Army. The family traveled around the West Coast and Hawaii during his adolescence. Chester never took to the religious aspects of his upbringing. He attended Oberlin College's preparatory school on the generosity of a wealthy uncle, but left after two years, in 1903. After leaving school, he worked at odd jobs until 1905, when he took a position at an uncle's skirt factory in Cortland, New York. Here, he met Grace Brown, another employee at the factory.

In the spring of 1906, Grace revealed that she was pregnant and began pressuring Gillette to marry her. She returned to her parents' home for awhile, but returned to Cortland when she found out that Gillette had been running around on her. Finally, Gillette made arrangements for a trip for the two of them to the Adirondacks. Gillette registered under a false name (although one that used his own initials, to match the monogram on his suitcase) and brought very little luggage with him. Grace may have expected a proposal, or even a secret wedding, so she agreed to meet him for the weekend. She brought her entire wardrobe, giving rise to speculation that she was headed for a home for unwed mothers.

Instead, Gillette took her out in a boat on Big Moose Lake in Herkimer County, New York, where he allegedly clubbed her with a tennis racquet and left her to drown. He returned alone and gave varying explanations for what had occurred. Brown's body was found the next day. Gillette had done a poor job of planning the cover-up and was quickly arrested in nearby Inlet.

The murder trial caused a sensation, especially when the victim's letters to Gillette were read aloud in court. Copies of the letters were sold outside the Herkimer County Courthouse; many of them were adapted into An American Tragedy. Gillette was convicted, and in 1908 he was executed by electric chair in Auburn, New York's Auburn Prison.

In 2007 Gillette's diary, which he wrote during the last seven months he was in prison, was donated to the Hamilton College Library by Gillette's grandniece. In addition to the diary, twelve letters written by Gillette during his time in prison were also donated. Eleven of the letters were addressed to Bernice Ferrin, a friend of the family who moved to Auburn, to stay with Gillette's sister Hazel. The twelfth letter, a farewell letter written the day before his execution, was addressed to Hazel Gillette. The diary and letters were published in December 2007.

Wikipedia.org

 
 

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
CHESTER GILLETTE, Appellant.

1. MURDER CIRCUMSTANTIAL EVIDENCE WEIGHT AND EFFECT THEREOF. The evidence upon the trial of a defendant, charged with the crime of murdering a woman whom he had seduced and who had become pregnant by him, examined and held, that such evidence, although circumstantial, all taken together and considered as a connected whole, constitutes such convincing proof of the guilt of the defendant that the court is not able to escape from its force by any justifiable process of reasoning, and that not only is the verdict of the jury convicting the defendant of the crime of murder in the first degree not opposed to the weight of evidence and to the proper inferences to be drawn therefrom, but such verdict is abundantly justified by the evidence.

2. CONSTITUTIONAL LAW POWER OF GOVERNOR TO CALL EXTRAORDINARY TERM OF THE SUPREME COURT, UNDER SECTION 234 OF CODE OF CIVIL PROCEDURE NOT AFFECTED BY CONSTITUTIONAL PROVISION (N. Y. CONST. ART. 6, 2) EMPOWERING APPELLATE DIVISION TO FIX TERMS OF THE COURT. The provisions of the Constitution (N. Y. State Const. art. 6, 2), conferring upon the justices of the Appellate Division of each department the power of appointing terms of the Supreme Court in and for such department, relate to ordinary and usual terms of court and do not in any manner conflict with the power reposed in the governor by the statute (Code Civ. Pro. 234) to call extraordinary terms; and, hence, a contention that the trial court, which was held at an extraordinary term convened by the governor for the purpose of trying the defendant, was not organized according to the Constitution of the state and had no jurisdiction to try the defendant or pronounce sentence against him, is untenable.

3. EVIDENCE EXHIBIT TO PROVE PREGNANCY OF DECEDENT WHEN PRESENCE THEREOF IN COURT IS NOT ERRONEOUS AS TENDING TO INFLAME PREJUDICE OF JURY. The fact that the foetus taken from decedent's body at the time of the autopsy was produced in court upon the trial of said defendant, in order to establish that the decedent was pregnant, does not constitute error, where such exhibit was carefully covered up and kept from view of the jury, so that it could not by any possibility have served to inflame their feelings to the prejudice of the defendant, and, especially, where no fact was established by such exhibit which was not, in the end, fully admitted by the defendant.

4. EVIDENCE THE FACT THAT LETTERS, ADMITTED AS EVIDENCE OF RELATIONS BETWEEN DEFENDANT AND DECEDENT, MAY HAVE HAD INFLUENCE UPON MINDS OF THE JURY ON QUESTION OF MOTIVE, FOR WHICH THEY MIGHT ALSO HAVE BEEN ADMITTED, IS NOT GROUND FOR REVERSAL OF JUDGMENT OF CONVICTION. Where letters, written to the defendant by the decedent and by the defendant to the decedent, were admitted by the trial court not only under the ruling that the former should not be received as evidence of the facts therein stated but under the further, and too narrow, ruling that they were admitted "only for the purpose of showing how the decedent regarded her relations with the defendant," the judgment of conviction should not be reversed upon the ground that the letters might have had a wider significance in the minds of the jury than that which was authorized by the trial judge, where, aside from the admitted purpose of showing the relations and thoughts of the decedent towards the defendant, the only effect the letters would have been apt to have with the jury, so far as the latter could be controlled by any ruling of the court, would have been to tend to establish a motive for the commission by defendant of the crime which is charged against him; the letters might have been admitted with entire propriety for this very purpose, and, therefore, if the jury considered them upon that feature of the People's case, it did no more than the court should have directed and authorized them to do.

5. DISTRICT ATTORNEY ERRONEOUS STATEMENTS ON SUMMING UP WHEN HARMLESS OR CURED BY WITHDRAWAL THEREOF AND BY INSTRUCTIONS FROM THE COURT THAT THEY BE DISREGARDED. The fact that the district attorney, in summing up the case, after a long and bitterly contested trial, made some statements not fully justified by the evidence held not to be a sufficient ground for reversal where the district attorney, upon objection, immediately withdrew, and the trial judge explicitly and clearly instructed the jury to disregard, any unwarranted statements, and it does not appear that such statements produced any substantial or lasting effect upon the jury outside of and in addition to that caused by the evidence itself.

(Argued january 9, 1908; decided February 18, 1908.)

APPEAL from a judgment of the Supreme Court, rendered December 10, 1906, at an Extraordinary Trial Term for the county of Herkimer, upon a verdict convicting the defendant of the crime of murder in the first degree, and from an order denying a motion for a new trial.

The facts, so far as material, are stated in the opinion.

Albert M. Mills and Charles D. Thomas for appellant. It was error to receive in evidence and to read to the jury the letters of the deceased which she had written to the defendant. (Willett v. People, 27 Hun, 477; 92 N. Y. 29; People v. Green, 1 Park. Cr. Rep. 18; Wigmore on Ev. 1073; People v. Smith, 172 N. Y. 232; People v. Sutherland, 154 N. Y. 347; People v. Webster, 139 N. Y. 81.) It was error to permit the witness Marjorie Carey to express an opinion that a certain sound which she heard was uttered by a woman. (Ferguson v. Hubbell, 97 N. Y. 507; Schultz v. U. Ry. Co., 181 N. Y. 37; Littlejohn v. Shaw, 159 N. Y. 188; Roberts v. N. Y. & E. R. R. Co., 128 N. Y. 465; Messner v. People, 45 N. Y. 1.) It was error to submit the two specimens of hair to the jury and let them speculate as to the identity thereof. (Petrie v. Howe, 4 T. & C. 85; People v. Carney, 29 Hun, 49.) It was error to produce the uterus of the deceased and the foetus of the unborn child and receive them in evidence. (Perry v. M. R. R. Co., 68 App. Div. 353; People v. Altman, 147 N. Y. 473; People v. Strait, 154 N. Y. 165.) The method by which this trial was conducted by the prosecution was oppressive and unfair to the defendant. (People v. Fielding, 158 N. Y. 546; People v. Smith, 162 N. Y. 531; People v. Wolf, 183 N. Y. 464.) The court which held this trial was not organized according to the Constitution of the state, and had no jurisdiction or power to try the defendant or pronounce the judgment of death against him. (Const. of N. Y. art. 6, 2.)

George W. Ward for respondent. It was not error to receive in evidence the complete correspondence passing between the deceased and the defendant during their relationship. (People v. Sutherland, 154 N. Y. 345; People v. Tice, 131 N. Y. 651.) The description by the witness Carey of the cry heard by her about six o'clock P. M. of July eleventh, was competent. (Abb. Tr. Brief, 228; 3 Wigmore on Ev. 1918, 1919; Cornell v. Green, 10 S. & R. 16; Mayor, etc., v. Pence, 24 Wend. 675; Syddleman v. Beckwith, 43 Conn. 12; Hardy v. Merrill, 56 N. H. 241; Van Wycklen v. City of Brooklyn, 118 N. Y. 429; Schwander v. Birge, 46 Hun, 69; Ferguson v. Hubbell, 97 N. Y. 513; Cowen v. Hayes, 138 Mass. 185; People v. Ward, 3 N. Y. Cr. Rep. 483; People v. Adams, 63 N. Y. 621.) No error was committed in exhibiting to the jury the tangled hair collected from the braces of the boat together with some hair cut from decedent's head. (People v. Buddensieck, 103 N. Y. 487.) The power of the governor to call an extraordinary term of court and the jurisdiction of the court is not questionable. (Code Civ. Pro. 234; People v. Shay, 147 N. Y. 85; People v. Young, 18 App. Div. 162.)

HISCOCK, J.   No controversy throws the shadow of any doubt or speculation around the primary fact that at about six o'clock in the afternoon of July 11, 1906, while she was alone with the defendant, Grace Brown met an unnatural death and her body sank to the bottom of Big Moose lake. But the question which is bitterly disputed, and which is of such supreme importance to this defendant, is whether this tragedy was the result of suicidal drowning or of violence inflicted by his hand under such circumstances as constituted deliberate murder. The jury, after a long and arduous trial, have adopted the latter theory, and, therefore, the serious responsibility comes to us of determining whether their conclusion is infected with any such error, either of fact or of law, as requires the judgment based thereon to be reversed and the defendant to be relieved from that sentence to the extreme penalty of the law which now hangs over him.

In pursuing the first branch of our investigation and in the discussion of the evidence for the purpose of making clear and stating our conclusions with reference to its weight and effect, it will not be possible to refer to all of the details which have been developed with such care by counsel on either side in support of his theory of guilt or innocence. All of them have received our painstaking consideration and the omission of reference to many of them is due to those limitations of reasonable length which should be imposed upon this opinion.

At the date of her death Grace Brown was about twenty years of age and the defendant was about three years her senior. The former had been brought up in a country home of an apparently simple and wholesome atmosphere, and, subject only to her relations with the defendant, she seems to have been a girl of pure character and of unusual intelligence and attractiveness. The defendant was possessed of education, of previous good character, and had had considerable experience in the world. They came together as employees in the factory of defendant's uncle in the city of Cortland, New York, and this common employment led to acquaintance and intimacy, and finally to the seduction, and three or four months before her death to the pregnancy of the deceased by the defendant. The defendant largely screened this association from observation, and in public sought the society of young ladies belonging to what would be regarded as a more pretentious social grade than that to which decedent belonged.

In the latter part of June, evidently by pre-arrangement and with the expectation that the defendant soon would join her, the deceased left the factory and went to her father's home not far from Cortland. While there several letters passed from her to him and two or three from him to her. The great body of the former is filled with expressions of affection for defendant and with pathetic references to her physical and still greater mental distress caused by her condition; with references to their coming trip and what manifestly were preparations for marriage; with complaints at defendant's lack of affection and consideration and his pursuit of pleasure elsewhere and his failure to write to her more frequently; with entreaties that he should soon come to her, and doubts whether he would come as he had promised, followed by expressions of contrite sorrow for her distrust of him; and finally with very significant statements that if he did not come to her she would return to him at Cortland.

Finally on the evening of July 8th the defendant went to a neighboring railroad station where the next morning he was joined by the deceased; thence they journeyed to Utica where they stayed that night; thence the next morning to Tupper lake in the Adirondacks where they stayed that night, the next morning retracing their course to Big Moose lake, and thus reaching the spot where was to be enacted the closing scene of their unhappy association. This journey must have been planned with the theory, genuine of course on the part of the woman, that it would lead to marriage. It could have presented no other reasonable or lawful purpose. The time had passed when desire would prompt such a trip as the cover or opportunity for mere illicit enjoyment. A condition existed which only could be relieved in a legitimate way by marriage and the defendant has testified that at that time he loved the deceased and intended to marry her.

Yet every significant step taken by him seems to have led away from this consummation. At all times when he was in the neighborhood or presence of those who knew him he concealed his companionship with the deceased, and at Utica and Tupper lake where he stayed with her as his wife he registered both under assumed names and from fictitious residences, and the final registry made at Big Moose lake which gave correctly the name and residence of the deceased, still utilized a false name and place of residence for himself. And while he was thus carefully suppressing the facts of identity and companionship he was arranging through social engagements with young lady acquaintances and otherwise to be present a few days later at certain pleasure resorts, publicly and undisguised.

From these circumstances, the People argue with much force that at the time when defendant started out on the journey he did not intend to marry the deceased; that he did not purpose during the latter days of the week openly to acknowledge a relationship which he was so carefully concealing during the first days, and that, therefore, already he must have planned to rid himself of its embarrassments. At least it is manifest that during those days when they journeyed back and forth he was unready and unwilling to solve their difficulties by the lawful remedy of marriage.

Shortly after arrival at Big Moose the defendant engaged a row boat and alone with the decedent started out on the lake. Some of the incidents which attended the setting out on this trip are treated as of great importance by the district attorney and we think properly so. While an article of decedent's wearing apparel was left in a conspicuous place in the hotel from which they started, defendant gathered up and took with him all of his property, including an umbrella, an overcoat and a heavy suit case upon which he carried a tennis racket which became an article of much importance on the trial. We do not think that the evidence fairly establishes any legitimate explanation of this latter conduct, and we are forced to the conclusion urged by the People that the defendant was then planning such a termination of the boat ride that he would not desire to return to the hotel and, therefore, was taking with him all of his possessions.

The two people were seen on the lake at various times during the afternoon and finally towards its close were observed going toward a secluded portion of the lake where subsequently the tragedy occurred, the defendant rowing and the decedent sitting in the stern of the boat, and soon after and at about the time when death was happening and from the direction where it was happening a sound was heard which was described as a woman's scream.

After the death the defendant went on shore and taking his possessions with him struck through the woods to a road with which it is claimed he had become familiar and journeyed on foot and by steamboat to another resort of the Adirondacks near that at which as before stated he had planned to be the last of the week. As he went, he carefully hid his tennis racket in the woods. He became a guest of the hotel under his own name and there and in that neighborhood spent the following two days after the manner of an ordinary summer tourist, showing no outward signs of distress and giving no information of what had happened. Upon the following morning he was taken into custody.

The next day after the tragedy the boat was found floating bottom side up and the body of the decedent was recovered from the lake.

Of the facts thus far stated most are undisputed and all are established in our judgment beyond any reasonable doubt whatever. And now with the light which they shed upon it we will revert to the crucial question, What was the cause of Grace Brown's death? and that leads us to an examination of the condition of her body as it was disclosed by the autopsy performed July 14th by five physicians who were sworn as witnesses.

According to their testimony there were found on her head and face many marks of violence, especially there being evidence of a blow near the left eye sufficient to cause blindness and of a blow on the side of the head three inches above the ear of sufficient severity to cause unconsciousness even if not more serious consequences, and it is the theory of the prosecution that these wounds were inflicted by the defendant in the boat with the tennis racket and thereafter the body thrown into the water.

The accuracy and completeness of this autopsy and the candor and truthfulness of these doctors were assailed with unflinching vigor and with much ability on the trial by the learned counsel for the defendant. He sought to minimize the evidence of violence and to make the witnesses admit that there were present all of the prominent signs of drowning, thus combating the People's theory and sustaining the defendant's theory of suicide. We think that he failed of success. It may be admitted that at times on cross-examination the answers of witnesses were unsatisfactory and that in the form in which questions were put they were compelled to admit the presence of signs incident to drowning, this latter evidence many times when occasion offered being modified to the effect that such signs as were actually found in this body might result from death in other ways or from the embalming which had been performed. But aside from this, through the examination of these witnesses as an entirety, there runs constant, consistent and convincing evidence that the decedent bore upon her head the marks of violent blows. In the statement compiled from the notes of the autopsy within sixteen days after the death and before witnesses, even if they were willing, could intelligently prepare for this trial, we find this concluding statement: "From the findings of the autopsy the cause of death was primarily concussion, followed by syncope and then asphyxiation."

This testimony to the presence of marks of violence is no expression of opinion or theory. It deals with actual, visible conditions. The witnesses either saw what they describe or else with wholesale and wicked perjury they are attempting to sacrifice a human life by pretending to describe that which they did not see. We cannot adopt the latter view, and when we reject it and reach the conclusion that the body bore proof of external wounds, we are led directly and irresistibly to the next conclusion as to the authorship of those wounds. No reasonable theory sustains the possibility of their infliction after death, and no reasonable theory accounts for their infliction before death save by the hand of the defendant.

And again, when we reach this second conclusion, we are necessarily driven to the third and last one. If in those final moments whose events were seen by no living eye save that of the defendant himself, he was beating the head of Grace Brown, there is no room for conjecture about the quality and intent of his acts, and it becomes a matter of small consequence whether he thus wounded her to insensibility or worse, or whether he flung her still partly conscious into the water, there for a brief period to maintain a feeble struggle for life and thus produce those signs of drowning whose presence is so earnestly asserted by counsel.

Thus far we have tested the People's case almost entirely by the weight of their own evidence. But limited as we are to a choice between two theories of the decedent's death, the one advanced by the People is strengthened in our minds, if that were necessary, by the improbability and apparent untruthfulness of the one offered by the defendant, and to a consideration of which we now turn.

He testifies that shortly before her death he and the decedent commenced a discussion of their situation, and after awhile he said in substance that he would communicate it to her parents; that they could not keep on as they were, and that thereupon she stated, "Well, I will end it here," and jumped into the lake; that after some ineffectual efforts to rescue her, and without any cry for help he went on shore and gathering up his property and without informing any of the cottagers or hotel guests on the lake of the accident, he proceeded to Eagle Bay and Arrowhead, as already stated, where he spent two days in various amusements, still giving no information of what had happened. So that by this evidence, offered by the defendant himself as the only innocent explanation of what transpired, we see him emerging from this catastrophe where he had made no outcry for help, and with apparent composure turning in other directions and to other pursuits while he left the body of the woman, whom he says he loved better than any one else and intended to marry, lying unrecovered and unsought at the bottom of the lake.

And when we have passed beyond the impressive unnaturalness of some of the principal features of this account, we encounter much evidence which still further impeaches its truthfulness. According to the People's witnesses there were several, and, by the admission of the defendant himself, some statements with reference to the tragedy made by him after his apprehension widely at variance with his present testimony. There was no satisfactory explanation of the dry condition of the suit case which he had taken in the boat, or of the condition of his clothes, or of the completely overturned boat with the decedent's cape lying on top of it. And in addition to these inherent deficiencies and improbabilities of his evidence there are repeated contradictions by a large number of witnesses who apparently had no interest in telling anything but the truth.

While incomplete in respect to minor details this summary of the evidence is sufficient for the purposes of this opinion, and as a basis for the statement of our convictions with respect to the merits of the prosecution.

We are mindful at every step that this is a case of circumstantial evidence and that the only eye-witness denies that death was the result of crime. But in obedience to the most exacting requirements of that manner of proof, the counsel for the People, with very unusual thoroughness and ability, has investigated and presented evidence of a great number of circumstances for the purpose of truly solving the question of the defendant's guilt or innocence. We might think that the proof of some of these facts standing by themselves was subject to doubt by reason of unsatisfactory or contradictory evidence and that other occurrences might be so explained or interpreted as to be reconcilable with innocence. But all taken together and considered as a connected whole, they make such convincing proof of guilt that we are not able to escape from its force by any justifiable process of reasoning, and we are compelled to say that not only is the verdict not opposed to the weight of evidence and to the proper inferences to be drawn from it, but that it is abundantly justified thereby.

But it is earnestly urged that material errors were committed in respect to, and upon, the trial whereby substantial rights of the accused were so prejudiced that for this reason he should be granted another opportunity to establish his innocence, and we take up the consideration of these arguments.

At the very threshold of the trial the defendant challenged the legality of the term at which he was being tried, and which was an extraordinary term convened by the governor for the purposes of this particular trial. It is insisted that under the provisions of section 2, article VI of the Constitution the exclusive power was conferred upon the Appellate Division of appointing terms of the Supreme Court and that the power conferred by section 234 of the Code of Civil Procedure upon the governor to convene extraordinary terms has been impliedly repealed. We think that this question indirectly and directly has been decided adversely to appellant's contention, and we have no disposition to disagree with the conclusion sustained and reached in People v. Young (18 App. Div. 162) and People v. Shea (147 N. Y. 78), that the constitutional provisions cited relate to ordinary and usual terms of court, and do not in any manner conflict with the power reposed in the governor to call extraordinary terms.

Some of the exceptions, such as those relating to the photograph of the deceased used upon the trial, the identity of the hair found at the bottom of the boat, and the evidence of the hearing of that which sounded like a woman's scream at about the time of and from the direction of the locality where the decedent's death occurred, do not require detailed consideration, for in our opinion the evidence received was competent and simply presented the ordinary questions of weight and credibility.

No error was committed by the production in court of the foetus taken from decedent's body at the time of the autopsy. We are not prepared to say that it would have been error if this had been produced and put in evidence in the ordinary way. It was a very material part of the People's case to establish that the deceased was pregnant, and up to the time the evidence in question was produced there had been no act or admission upon the part of the defendant which relieved them from establishing this fact by any competent evidence, and it very well might be said that the foetus itself would be perfectly proper testimony upon this point. But it is not necessary to go to this extent in order to meet the criticisms of the appellant, for this exhibit was carefully covered up and fully kept from the view of the jury. It, therefore, not only established no fact which was not in the end fully admitted in behalf of defendant, but it could not by any possibility have served to inflame the feelings of the jury to his prejudice.

The only question of evidence which in our judgment is at all debatable is that which arises in connection with the admission in evidence of decedent's letters to the defendant.

In addition to those written in June, and to which already reference has been made, two others written by her to defendant and one written by defendant to her during the month of April preceding the homicide were admitted in evidence and are criticised. So far as these earlier letters are concerned, they constitute a well-proportioned correspondence between the parties, those of the decedent largely being taken up with girlish gossip and with expressions of endearment and affection for the defendant, which were not harmful to him. The only material passages are those in her first letter calling for his companionship and somewhat reproaching him for his willingness to have her absent, and the significant reply in his that it would be better to discontinue his attentions.

The only possible complication in connection with the admission of these letters arises from the restriction placed by the learned trial justice upon the purpose for which they might be admitted. Of course it was entirely correct to rule that they should not be received as evidence of the facts therein stated, but the further ruling that they should be admitted "only for the purpose of showing how the decedent regarded her relations with the defendant," made in a spirit of commendable caution, placed a limitation on their use which was too narrow and somewhat difficult to interpret. Independent of the competency secured for decedent's letters by reason of the fact that they were part of a correspondence which included letters from defendant also introduced in evidence, her letters were perfectly proper evidence upon the subject of motive. They forced upon his mind, after he had proposed a termination of their intimacy, a vivid realization of the fact that the decedent, distressed in body and agonized in mind as the result of his acts, was clinging to him and was looking to marriage as the only solution of her difficulties, and that while pleading that he should come to her, she was intimating at the same time in no uncertain terms that if he did not keep faith and come to her she would come to him to accomplish this. They must have suggested with irresistible force that he had arrived at a point where unless he was willing to publicly acknowledge his relations with the decedent as he never had done and permanently cement them by marriage he must escape by another way leading in a different direction and, as the People say, to the tragedy at Big Moose lake.

Both counsel by their reference to and use of these letters, without available objection made at the time, perhaps placed a practical construction on the ruling of the court which broadened the natural meaning of the language used and materially enlarged the purposes for which the letters might be considered by the jury under the ruling. In addition to this, the district attorney by his cross-examination of the defendant with reference to these same letters legitimately brought into the record a large part of the contents thereof free from the restrictions originally imposed by the trial judge.

But notwithstanding all this, it possibly may be true that these letters obtained a wider significance in the minds of the jury than that which was authorized by the trial judge, and the question is whether for this reason we should reverse the judgment.

Aside from the permitted purpose of showing the relations and thoughts of the decedent towards the defendant, we can think of no effect which they would have been apt to have with the jury, so far as the latter could be controlled by any ruling of the court, except to tend to establish a motive for the commission by defendant of the crime which is charged against him. But, as we have seen, they might have been admitted with entire propriety for this very purpose, and, therefore, if the jury considered them upon that branch of the People's case, it did no more than the court should have authorized and directed them to do. Should we, therefore, reverse this judgment because the jury may have considered evidence for a purpose not permitted by the court on the trial, but which should have been permitted and for which purpose under our opinion the court would permit it to be used on a new trial, if we should grant one? We think not. We are commanded by the statute to give judgment "without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties," and we should depart from the letter and spirit of these controlling instructions if we did so reverse.

It is true that scattered here and there through the letters are expressions which are not very pertinent. But in the main these relate to little details of the decedent's life and we think could not have been a source of material harm to the defendant. Furthermore we are inclined to think that when counsel had made objection to the letters as a whole as incompetent and inadmissible the obligation fairly rested upon him to specify any scattered sentences which he deemed inadmissible for special reasons.

In the submission of the case to the jury we do not find that any errors were committed in the very careful and impartial charge of the court, and so far as the later stages of the trial are concerned we shall limit our discussion to a review of the complaints made against the methods of the district attorney in summing up, it being claimed that he made statements and comments which were not justified by the record and which tended greatly to excite the minds of the jury and prejudice the defendant.

It doubtless is true that the district attorney as well as his adversary did say some things which rested upon no sufficient basis of evidence. Many of his statements, however, which are now criticised come within the fair limits of inferences from and arguments on the testimony. We think that at least one statement in regard to the alleged comments of defendant's counsel upon the decedent must have been the result of a mistake and inadvertence, or else, as now claimed by the district attorney, based on something not appearing in the record. While, of course, it is objectionable that counsel in summing up should travel beyond correct limits, we realize that human nature has limitations and that it is difficult for counsel, who for weeks have been engaged in such a struggle as was this case, tending to arouse to the uttermost degree their zeal and anxiety, at all times to avoid transgression. Neither side was entirely free from it here. But, upon objection, the district attorney immediately withdrew, and the trial judge explicitly and clearly instructed the jury to disregard, any unwarranted statements, and we do not believe that they produced any substantial or lasting effect upon the jury outside of and in addition to that caused by the evidence itself.

In conclusion, we think that no error was committed which substantially impaired defendant's rights. We believe that the adverse verdict was not the result of any of those occurrences which are criticised by his counsel and which possibly we could say might better be modified or omitted on another trial. But rather we think that it was based on the substantial features and essential character of the case which was fairly established against him, and that so long as the conduct of an accused is to be tested in such an investigation as this, by the intentions and purposes which ordinarily prompt human acts, and by the consequences which ordinarily follow them, no other result reasonably could have been expected in this case than that which has overtaken the defendant.

The judgment of conviction should be affirmed.

CULLEN, Ch. J., GRAY, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.

Judgment of conviction affirmed.

 
 

IN THE COURT OF APPEALS

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

- against -

CHESTER GILLETTE, Appellant.

Points for Appellant:

STATEMENT

     The defendant, Chester Gillette, appeals from a judgment of the Supreme Court entered in Herkimer County on the 10th day of December, 1906, by which it is adjudged that the defendant is guilty of the crime of murder in the first degree and that the punishment of death be inflicted upon him during the week of January 28th, 1907.

           (Case Vol. 1, folios 445-453.)

     In August, 1906, an indictment was presented by the Grand Jury of Herkimer County against the defendant, Chester Gillette, charging him with the murder of one Grace Brown. It alleges the crime to have been committed on the 11th day of July, 1906, by assaulting and beating her and casting her into the waters of Big Moose Lake and drowning her.

           (Case Vol. 1, folios 23-39.)

     The defendant was arraigned August 31st, 1906, and pleaded, "Not Guilty." Mr. Charles D. Thomas and Mr. A. M. Mills were assigned by the Court as counsel for the defendant. The Court was adjourned to the 12th of November, 1906, on which date the defendant being present with his counsel the trial began. A jury was drawn and the trial continued from day to day until the 4th day of December, 1906, when the jury rendered it's verdict: "We find the defendant guilty as charged in the indictment."

           (Case Vol 1, folio 323.)

     On the 10th of December, 1906, the Court being in session, the defendant, before judgment was pronounced, moved that the verdict of the jury be set aside; that the defendant have a new trial and that judgment be arrested on the grounds:

     
That the verdict is contrary to law.

     That the verdict is against the weight evidence.

     That the jurors were prejudiced by improper statements of the District Attorney made in his opening address.

     That the jurors were prejudiced by improper statements made by the District Attorney in summing up the case.

     That this Extraordinary Term of the Court has no jurisdiction in this case.

     And upon all the exceptions taken in the court.

      The motion was entertained and denied and order duly entered denying the motion on the 10th of December, 1906.

           (Case Vol. 1, folios 406-411.)

     The defendant thereupon made a special motion in arrest of judgment on the ground that the Extraordinary Term of the Court was unlawfully convened and was without jurisdiction or power to indict, try or sentence the defendant, which motion was denied and the order duly entered.

           (Case Vol. 1, folios 417-438.)

     The term of the Court at which the defendant was indicted, tried and sentenced was an Extraordinary Term, called and appointed by the Governor of the State of New York, and the Justice to hold the said term was assigned by the Governor. There was on other designation or appointment of the said term of Court, and no other assignment of the Justice to hold the same was made, and there was no such designation or appointment by a Judge of the Appellate Division or of any authority other than the Governor of the State.

           (Case Vol. 1, folios 2-10 and 418-427.)

     The deceased was Grace Brown a young woman whose home was at South Otselic in Chenango County, New York. In the spring of 1906, she lived at Cortland, New York, and worked in a factory which was carried on by N. H. Gillette, an uncle of the defendant. She was then twenty years of age.

     In 1906 the defendant lived at Cortland, New York,. and worked in the same factory in which Grace Brown was employed. He was then twenty-two years old. There arose an intimacy between these young people and finally in about March, 1906, the girl became pregnant, the defendant being the father of the child.

     In the latter part of June, 1906, when her condition became embarrassing the girl went to her home in South Otselic and stayed until the 9th of July. Then by a previous arrangement between her and the defendant they met at DeRuyter, New York, and came together to Canastota-thence to Utica where they stayed that night. From Utica they went the next day to Tupper Lake, New York, and stayed there the night of the 10th.

     From Tupper Lake they went to Big Moose Lake in the Northern part of Herkimer County. They went to the Glenmore Hotel at Big Moose arriving there about eleven o`clock in the forenoon. They planned to go out on the lake and around the lake on the steam boat which made trips from the Glenmore Hotel to points of interest on the lake. They were prepared to take the steamboat at the time of its leaving which was shortly before twelve o`clock.

     On the suggestion and recommendation of the landlord of the hotel, who was interested in the row boats, and not in the steamboat, made to the defendant, they changed the plan and took a row boat and went out on the lake leaving the hotel at about noon. They rowed around the lake and went out on the land at different points on the shore until about six o`clock in the afternoon when by some means the young woman got into the lake and her dead body was found by searchers the next day, the 12th of July.

     The claim of the prosecution is that the defendant took this young woman out on the lake intending to kill her, that he did kill her and threw her body into the lake.

     The defendant stoutly asserts that the young woman, becoming desperate over the situation jumped into the lake thereby committing suicide.

     A large amount of testimony was taken. The record of the trial contains something over two thousand pages of printed matter. The trial took place within four months after the tragic death of the girl and while, the public mind was greatly excited. The trial lasted, three weeks.

     The defendant in giving his narrative of the occurrence which resulted in the death of the young woman, says, that about six o`clock in the evening while they were drifting on the lake in the boat, they began talking about the situation and the predicament they were in. The defendant said to the girl that they could not keep going on in the way they had done and that some different course must be pursued. He proposed that they should go home and tell the parents of the girl all the facts. The girl thereupon began to cry and finally saying: "I will end it here" sprang up in the boat and threw herself into the lake. The defendant tried to reach and stop her but was net quick enough. The boat was overturned and both went into the lake and the girl was drowned.

           (Case Vol. 3, Folio .83-89.)

     For some days before then the girl had contemplated suicide.

     In June when she left the factory to go to South Otselic from whence the couple went away, she talked to a foreman in the factory bidding him good-by -- said she was going to the North Woods and probably would never see him again.

           (Case Vol. 3, Folio 1304.)

     A day or two before she left the factory on that occasion in. June she was crying and said to a fellow workman that she wished she would die and hoped she would not live to see the sun rise again.

          (Case Vol. 3, Folio 1307.)

     At the same time to another associate in the factory she said she was going to the North Woods and might never come back. She was crying and. said she wished she was dead; she said she wished she would never see the sun rise again.

           (Case Vol. 3; Folio 1312)

     At about, the same time she said to another person in the factory: "I am awfully blue; I wish I would never see the sun rise again."

           (Case Vol. 3, Folio 1315.)

     The letters which she wrote from her home in South Otselic to the defendant, and which were put in by the prosecution, are filled with the expression of an intention and desire to commit suicide.

           (See the letters case Vol. 1, Folios 2278-2414.)

     When the couple. arrived at the hotel at Big Moose Lake the defendant made an arrangement for them to go out on the steamboat which started from the hotel and went about the lake. The landlord at the hotel then talked with him about it and suggested and persuaded him to abandon the plan of going on the steamboat and to take a row boat from the boat house of the hotel.

            (Case Vol. 2, Fol. 226 and 236, Vol. 3, Fol. 48-5.)

     The case of the prosecution rests entirely on circumstantial evidence.

Appellant's Point I

     It was error to receive in evidence and to read to the jury the letters of the deceased which she had written to the defendant.

     Upon having arrested the defendant and while he was in jail at Herkimer the prosecuting officers forcibly entered the living room of the defendant at Cortland, New York, and with force opened his private desk and took therefrom a number of letters which had been written and sent through the mail to the defendant by the deceased. The seizing of these letters was without the knowledge or consent of the defendant.

          (Case vol. 1, folios 2194-2219.)

     On the trial these letters, each in the envelope in which it appears to have been sent, were produced, identified and marked as exhibits. The envelopes being numbered and the letters enclosed being marked with the number and the letter A. These exhibits are from "10-A'' to "22-A'' inclusive.

     There was another letter marked "Exhibit 23." Another letter and envelope are marked "24" and "4-A".

          (Case vol. 1, folios 2165-217l.)

     The District Attorney offered each `of these letters and envelopes in evidence beginning with Exhibit No. "10" and "10-A", whereupon the defendant promptly objected as to each of the said letters that it was incompetent, immaterial and inadmissible as against the defendant; that it was obtained wrongfully and forcibly from the desk of the defendant and without his knowledge or consent; that the defendant cannot be made to surrender testimony and letters and make proof against himself. That the letter is a declaration of a person other than the defendant and is not competent or binding upon him in any way. The ruling of the Court was: "The letter is received but only for the purpose of showing how the deceased regarded her relations with the defendant and not admitted for the purpose of proving any facts stated in the letter. It is not received for the purpose of proving any alleged statements of facts stated therein, but only for the purpose of showing how the deceased regarded her relations with the defendant." The same objection and the same ruling was made to each of the letters of the deceased separately.

          (Case vol. 1, folios 2251-2261.)

Thc defendant objected again when the District Attorney proceeded to read these letters ito the jury, and the same ruling was made by the Court and exception taken.

          (Case vol. 1, folios 2277-2290.)

Exhibit No. 10 was dated April 11, 1906 and posted April 13th, 1906.

          (Case vol. 1, folio 2277.)

Exhibit No. 11 was posted April 14th,.1906, and dated April 13th, 1906.

          (Case vol. 1, folio 2290.)

Exhibit No. 12 is postmarked: "June 19, 1906." (Case vol. 1, folio 2299.)

Exhibit No. 13 is postmarked: "June 21, 1906." (Case vol. 1, folio 2307.)

Exhibit No.14 is postmarked: "June.21, 1908." (Case vol. 1, folio 2312.)

Exhibit No. 15 is postmarked: "June 23, 1906." (Case vol. 1, folio 2321.)

Exhibit No 16 is postmarked "June 23, 1906" (Case vol. 1, folio 2330.) .

Exhibit No. 17 is postmarked: "June 26, 1906." (Case vol. 1, folio 2342.)

Exhibit No. 18 is postmarked: "June 28, 1906." (Case vol. 1, folio 2335.)

Exhibit No. 19 is postmarked: "July 2, 1906." (Case vol. 1, folio 2339.)

Exhibit No. 20 is postmarked: "July 3, 1906." (Case vol. 1,. folio 2379.)

Exhibit No. 21 is postmarked: "July 4, 1906." (Case vol. 1, folio 2394.)

Exhibit No. 22 is postmarked: "July 6, 1906." (Case vol. 1, folio 2403.)

     The Court received all these letters and let the entire contents thereof be read to the jury by the District Attorney.

     It is true that the Court in its ruling limited the purpose for which it received these letters, (which ruling we will examine later) but it received all the letters and let the entire contents be read to the jury by the District Attorney. From that time on during the trial the letters were continually resorted to and used by the District Attorney as proof of time facts therein stated, especially were they adroitly used as such in the summing up. Constant appeal was made to them. Almost sentence by sentence they were read and from each sentence comments were made treating it as a declaration of fact and proof in the case. Every statement in those letters which the District Attorney thought would be useful or effective with the jury was used as proof of the verity of the statement by the testimony of the deceased.

          (Case vol. 3, folios 2200, 222, 2244, 2250, 2274, 2284, 2293, 2304, 2306, 2308, 2314, 2315, 2324, 2337, 2338, 2339.)

     Indeed, it is not too much to say that the major part of the able discussion of this case to the jury was based upon the statements contained in those letters. No effort was made or caution given by the Court in its charge or otherwise to instruct the jury about the use of these letters, but every word of them went to the jury as proof of fact embellished by the eloquence of the District Attorney and sanctified by the pathetic death of this poor girl.

     (a) The letters were hearsay and not admissible.

Willett vs. People, 27 Hun, 477.
Affirmed 92 N. Y., 29.
People vs. Green, 1 Park. Cr. R., 18.

      (b) These letters cannot be received under the claim that the defendant is to be taken as admitting the truth of the statements therein contained.

     Sometimes if a statement is made to a party orally which under the circumstances he is called Upon to answer and lie does not answer, he will be regarded as admitting the truth of the statement, or, if he makes answer, his answers may be given. The rule is of very much less force when the statements are made to the party in writing or by way of a letter. A person receiving a letter may or may not answer it for a variety of reasons, and to say that his failure to answer commits him to the truth of the statement. in the latter, is hardly safe or proper.
          Wigmore on Evidence, section 1073.

     Such evidence is most dangerous and should be received with great caution.
          People vs. Smith, 172 N. Y., 232.

     This rule applies only to such matters as are stated in the letter or communication about which the defendant is clearly seen to have known and was called upon to answer. As some cases have stated it, there must appear a motive on the part of the defendant to make an answer. And as others put it, the statement must be such as to call for some response or act on the part of the defendant.

     An examination of these letters shows that only a very small part of the statements therein contained are of the character which becomes evidence by the rule of "Assent by Silence." For the most part these letters are made up of statements of matters about which the defendant could not know and as to which he was not called upon to make any answer. For instance in Exhibit 10 vol. 1, folio 2279 the deceased writes: "I had such a tiresome journey that I am about sick." "I coughed all the way there and was ill all night."

     And again, (Case vol 1, fol. 2289:) "I did not think all the home folks would he so glad to see me; they eat me up and if you have ever thought I was spoiled, dear, I don't know what you will think when I get back. You or anyone else won't be able to do anything with me." Again, (Case vol. 1, fol. 2289:) "I don't mean the horrid things I write, but I am so blue and tired and have coughed so much all day. You can't read this because I am in bed writing. Now, please don't forget about writing, dear, and please don't be cross."

     And again, (Case vol. 1, fol. 2316:) "I hope I can die. The doctor says I will, and then you can do just as you like."

     And so the whole thirteen letters written by this young woman and which are read bodily into the evidence in this ease are made up nearly altogether of matters which do not in any way fall within the rule above stated. It is possible that some extracts from these letters might have been received under the rule; that is, there may be some statements of fact to which the defendant was called upon to reply, although as to most of these letters I think it will he difficult to find statements of fact which are material to this case, and as to which the defendant can be held to the rule of "Assent by Silence." If, however, there are such statements in the letters, those statements should have been read as extracts. It cannot follow that the whole body of the letters can be read in evidence because somewhere in some of the letters there may have been a statement or a few statements to which the defendant was called upon to reply. Here are some twenty-seven pages of closely printed matter which comes into this ease as testimony against the defendant in the irresponsible form of a letter written by one not a witness in the case.

     It may be argued that as to some of these letters the defendant did reply.

     Exhibit 9-B (Case Vol. 1, Fol. 2351) was written June 25, 1906. In this letter the defendant refers to statements contained in the girl's letter of June 21st, which is Exhibit No. 14, and lie expressly denies and repudiates the things which the girl had written about his association with other girls. It can hardly be said that the letter written to the defendant proves by the rule of "Assent by Silence" such facts as he expressly answers and denies or repudiates.

     (c) The Court in its ruling said the letters were received for the purpose of showing how the deceased regarded her relations with the defendant. How is that important or material or in any way an element in the case? Does it bear upon the guilt or innocence of the defendant to know whether Grace Brown regarded her relations with the defendant as grossly improper or wholly correct, or whether she was entirely indifferent on the subject? The letters being read show that the deceased, Grace Brown, regarded her relations with the defendant as most painful to her. She suffered because of that relation, but it cannot he that that is a fact which is to be shown in this case against the defendant. Indeed, the receiving of these letters for the purpose announced by the Court would seem to be error in itself. As shown by the letters, Grace Brown's feelings were agonizing and the expression of them in the letters is very pathetic. The ruling of the Court was an announcement to the jury that those feelings and that pathos and the touching expression thereof were cogent and proper matters for them to consider as evidence in the case. Suppose these letters had been written to a third person in the precise language they are, would they not just as effectually show how the writer regarded her relations with Chester Gillette, as they do now? Would they then have been admissible on that ground?
     The belief, opinion and feelings of the deceased are wholly immaterial, and incompetent as evidence.

          People vs. Smith, 172 N. Y., 232.

(d) It cannot be said that these letters were harmless and did not endanger or prejudice the defendant. On the contrary they were the most effective part of the People's case. The reading of those letters aroused the most profound sympathy for the deceased and the most intense prejudice against the defendant. Take for instance the paragraph in the last letter. (Case vol. 1, folio 2410.)

     "I have been bidding good-by to some places today. There are so many nooks, dear, and all of them so dear to me. I have lived here nearly all of my life. First I said good-by to the spring house with its great masses of green moss; then the apple tree where we had our play house; then the bee-hive, a cute little house in the orchard, and of course all of the neighbors that have mended my dresses from a little tot up to save me a thrashing I really deserved.

     "Oh, dear, you don't realize what all of this is to me. I know I shall never see any of them again, and mamma! great heavens, how I do love mamma! I don't know what I shall do without her. She is never cross and she always helps me so much. Sometimes I think if I could tell mamma, but I can't. She has trouble enough as it is, and I couldn't break her heart like that."


   
  When that paragraph was read as it was with the most dramatic effect as a climax to all the other tender and heartrending expressions that are in these letters, there was hardly a dry eye in the court room. The jurors were stirred with the most intense emotion. They were swept on to the verdict of guilty by an irresistible tide of feeling against which no barrier or warning was interposed, except such feeble remarks as the defendant's counsel could make.

     (e) It may be argued that some parts of these letters are material because they show an arrangement between the defendant and the deceased to go away together as they did go. The fact that they did go together is abundantly proved and not denied, and the terms in which they agreed to go is not important. It was urged on the trial that Grace Brown had said in her letter to the defendant that she was coming back to Cortland and that the defendant did not want that. If that statement made by Grace Brown is competent or has any effect, it could have been read as an extract from her letters. It may be urged that these letters written in June are so near to the time of the departure of this couple that they some way become evidence in connection with that. They cannot be held to he part of the res gestae; certainly not all of the letters are.

     (f) The appellant is not unmindful of the case People vs Sutherland, 154 N. Y., 347, which will doubtless be cited by the respondent. We observe about that case that the decision was by a divided court: two members of the court dissenting. The opinion, after saying that the letters were admissible, proceeds to the real ground upon which the decision rests, that the letters did not prejudice the defendant. The contents of the letters in that case do not appear, but it is plain that the nonprejudicial quality of the letters is the basis of the decision. In speaking of their admissibility the court says: "It depends on the contents of the letters." In another place it is said: "If they are mere harmless love, letters, as they seem to be, they prove nothing" etc.

     In the case at bar the letters are prejudicial to the defendant and bore fearfully against him, as a perusal of them will show, and as we have pointed out before.

     It cannot be said that these letters cannot by any possibility prejudice the defendant, and that is a true test.

     The respondent must establish that the evidence received could by no possibility have prejudiced the appellant.

          People vs. Smith, 172 N. Y., 243.

     
(g) The rule of People vs. Sutherland was violated in this case in the way these letters were treated and used on the trial. The rule is that the letters were admissible to show how the deceased regarded her relations with defendant and not as proof of the statement of facts therein contained. Yet, all the way through the trial of this case, after the letters were in evidence, andespeciallyv during the cross examination of the defendant and the summing up by the district attorney, these letters were resorted to as proof of statements of fact therein contained, and the truth of what the letters contained was assumed and used with great force against the defendant. The court did not anywhere restrain the district attorney in that use of the letters, nor did it warn or advise the jury of the limited and restricted character of this evidence.

     "Where evidence is admitted not bearing directly upon the main issue, but having only an incidental relation, to a material fact, which is the subject of inquiry, it is both the province and duty of the trial court to clearly state the limits of its scope and application to be observed by counsel and jury."

          People vs. Webster, 139 N. Y., 81.

     The mere remark of the court made at the time of admitting the letters, that the letters were not received as proof of the facts therein stated, does not cure the error. The letters were read to the jury and used as effective proof of fact, without restriction by the court, or instruction regarding the effect of them.

          People vs. Smith, 172 N. Y., 240.

Appellant's Point II

     The receiving and reading to the jury the two letters written by the deceased to the defendant in April, 1906, was error and wrongfully prejudiced the defendant.

     The defendant makes this separate point with reference to those two letters of April because the time and circumstances of their writing are different from those of the other letter of Grace Brown which were read in evidence. It will be observed that in April, 1906, the deceased, Grace Brown, was on a visit at her home at South Otselic, having gone there from Cortland and remained there three or four days when she returned to Cortland and remained at Cortland until the latter part of June, 1906.

          (Case vol. 1, fol. 1981 and vol. 3, fol. 673.)

     While she was at her home on the occasion in April she wrote two letters to the defendant one dated April 13th, 1906, (Exhibit 10 case, vol. 1, fol 2279.) And another dated April 14, 1906, (Exhibit No. 11, case, vol. 1, fol. 2290.)

     That was at a time and occasion which is in no way related to the occasion when Grace Brown lost her life. It was about three months before this couple went away on the journey during which the woman died. It was before the pregnancy of the girl was known to the defendant or to her.

          (Case, vol. 3, folios 672-676.)

     These two letters were read in evidence with the others, over the objection and exception of the defendant. These letters were inadmissible on all grounds stated in the foregoing point which are here urged and repeated.

     The admission of these two letters in evidence cannot be justified on the ground that they are part of the res gestae; that they accompany or form any part of the act which led to the death of Grace Brown or that they were written in contemplation of any of those acts. There is not shown any situation or occasion existing in April, 1906, which suggests a motive for defendant to kill Grace Brown or that her death or any of the history connected with her death was then contemplated.

     Declarations or utterances to he a part. of the res gestae must be made at the time of the acts which they characterize. There must be a transaction of which they are a part.

          Tilson vs. Terwilhiger. 56 N. Y. 277,
          People vs. Davis, 56 N. Y. 951.

Appellant's Point III

     It was error to receive in evidence statements made by different parties, workmen in the Gillette Factory, to the defendant at a time long prior to the occurrences charged in the indictment.

     THERESA DILLON says: "Mrs. Harnishfeger told the defendant not to go down so often." She said to him: "You better not come down here, Harold will speak to you."

          (Case vol. 1, folios 2013-2016.)

     THERESA HARNISFEGER. This witness says: "I would tell him not to neglect his work. I used to tell him his place was in the stock room. Sometimes he would listen to what I said and sometimes he didn't."

          (Case vol. 1, folios 20-26.)

Appellant's Point IV

     It was error to receive the testimony of Alfred P. Raymond that in June, 1906, the defendant was at the place kept by the witness at Little York with Grace Brown, and that they went out on the lake in a boat.

     The identification of the lady as Grace Brown was not sufficient to allow this testimony to have been admitted. The witness says he did not know the lady who was there; that he had never seen her before or since. He says that a picture shown him looked like her, only she had on a high hat that night.

          (Case 1, folio 2110.)

     He said she had on a high dark colored hat and had a wrap around her.

          (Case folio 2141.)

     The picture which was shown him is of a lady in evening dress with no hat. The sister of the deceased testified that the deceased had no hat that summer, except the one in Court which was a light flat straw hat.

          (Case vol. 1, fol. 2234 and vol. 2, fol. 1178.)

     The witness Raymond is not certain about the identity from the picture. He says: "Only she had a hat on that night." And to the question of the Court he evidently was going to qualify his identification, but he was checked. To the Court's question he answers: "Yes, if the Court will permit, the picture represents a little" -- when he was stopped.

          (Case vol. 1, fol. 2121.)

     It is preposterous to say that this witness could or did identify from among hundreds who came to his place, as he says, this lady, who was a stranger, who was dressed for riding and whom the witness saw only casually in the dark or by the uncertain light of a lantern.

     The defendant positively denies that he was at Raymond`s with Grace Brown on the occasion. (Case, vol. 3, fol. ) Yet this witness was allowed to give the damaging and prejudicial testimony that the defendant took Grace Brown to that lake in the night; that he asked for a round bottom boat with which to go out with her upon the lake.

          (Case. vol. 1, fol. 2113.)

     And to make the further statement that the girl when they came back from the lake was crying.

          (Vo1 1, fol. 2115.)

     This laid the foundation for the suggestion that the defendant intended that night to drown the deceased in that lake, and aroused the sympathy of the jury -- as when they came off the lake the girl was crying.

     The receiving of the picture of the deceased in evidence and its free use in this case, as the basis for the testimony of Raymond and of much other testimony in the case, was error. There was no proof given how the picture was made: it is not shown whether it is a photograph or a free hand sketch or a black and white. All there is on that subject is, that the father says it is "A fair likeness" of his daughter.

          (Case, vol. 1., fol. 2182.)

     The picture is received against the objection of the defendant, and exhibited to the jury and used throughout the entire trial, as an accurate and authentic picture of the deceased. A photograph may be received in evidence if it is proved that it was accurately taken, and the process conducted with skill.

          Cowley vs. People, 83 N. Y., 479.

          People vs. Fish, 125 N. Y., 136.

     At an earlier date photographs were not admitted to be used as evidence, but the law now receives a photograph, provided it is shown, to be a photograph and to have been accurately and properly taken. It is not enough to satisfy the rule that "a picture is shown."

Appellant's Point V

     The photographs of Big Moose Lake made some time after the death of the deceased and showing conditions not existing at that time were improperly received in evidence.


     Exhibit 45 is a photograph of a part of Big Moose Lake. It has a pole with a piece of canvass over it and a boat riding on the water, which objects were placed there after the time of the death by Morrison, a witness for the people for the purpose of being photographed.

          (Case, vol. 2, folios 189-192.)

     Exhibit 85 is a photograph which shows a boat riding on the water which was also placed by the witness Morrison, to be photographed.

          (Case, vol. 2, fol. 1178.)

     It was error to allow the witness to testify to and from a picture showing an artificial condition which it is conceded did not exist at the time in question. One of the important matters in the issue of this case is the situation and position on the water of the boat occupied by the deceased and the defendant at the time in question, and to allow a witness, who was exceedingly active for the prosecution, after the occurrence, which he did not see, to place a boat other than the one that the defendant had, on the water, have it photographed and testify to it and show it to the jury, is misleading and prejudicial to the defendant.

     The idea conveyed to the jury is that that picture shows the boat in which the defendant and the deceased were at the time of the death of the woman. The condition was artfully created for the purpose of having the jury draw the inference that the boat, in which these two persons were, would not tip over, as defendant said it did.

Appellant's Point VI

     It was error to permit the witness Marjorie Carey to express an opinion that a certain sound which she heard, was uttered by a woman.

     The witness being on the stand, having described the position in which she was on the lake, gave the following testimony:
     Q. As you got out into the lake did you hear anything?
     A. I heard a cry in the direction of South Bay.
     Q. What was it like?
     Mr. Mills: I object to that.
     The court: She may describe it.
     Mr. Mills: I object to it as incompetent, immaterial, irrelevant, inadmissible in that form, and especially the witness cannot give her opinion.
     Objection was overruled.
     A. It was a piercing cry, very short, seemed to come from a distance; from the east shore of South Bay.
     Q. More than one cry did you hear?
     A. No sir.
     Q. Can you illustrate the cry by one, two or three syllables?
     A. Two syllables.
     Q. Can you tell whether the voice was that of a man or a woman?
     Mr. Mills: I object to that as incompetent. immaterial, improper.
     Objection overruled. Exception.
     By the court: He asks if you are able to state.
     By Mr. Ward: Q. What was it?
     Mr. Mills: I object to that as incompetent, immaterial, irrelevant and improper, an opinion which cannot be expressed; no foundation laid for the witness giving the evidence; that is no proper foundation.
     Objection overruled. Exception.
     By Mr. Ward: Q. What was it, what sort of a voice was it?
     The same objection; same ruling and exception.
     A. It was the voice of a woman or a young boy -- I should say the voice of a woman, it was too high pitched to be anything but a woman's voice.
     Mr. Mills: I move to strike it out on same grounds as the previous objection; it is a statement that cannot be given; no foundation laid for it. The witness cannot state such an opinion; she had not shown any ability or experience to do so.
     Motion was denied; exception to the defendant.

     The district attorney further asked her whether this cry which she spoke of came from a part of the bay where a pole was set up, which afterwards appeared to be a pole which was placed in the bay after the body of Grace Brown was found.

     Objection was made which was overruled and the witness readily said that it come from the direction of the pole.

          (Case vol. 2, folios 354-367.)

     The witness says she was in a boat crossing the lake going to Covey's camp on an errand. She says she heard the cry in the distance. She says the cry came from a distance from the east shore of South Bay, and the direction of the pole which Morrison had placed. Covey's Camp is distant from where that pole was set and where Morrison says he found the body of a woman about 2500 feet Nearly half a mile.

          (Case vol. 2, fol. 1486.)

     This evidence was exceedingly dramatic in its effect on the case, especially when she said it was a woman. The district attorney had said in his opening that there was a witness who heard the death cry of Grace Brown and this witness was allowed to speculate and guess that something which she heard was the cry of a woman. With that characterization of the cry attached to this evidence it became exceedingly damaging to the defendant and was equivalent to saying to the jury that this woman heard the cry of Grace Brown.

     There was no evidence to show any ability on the part of this witness, Mrs. Carey, to distinguish the cry of a woman from any other cry. She says: "It was the voice of a woman or a young boy." expressing some uncertainty then. But she finally says: "I should say the voice of a woman; it was too high pitched to be anything but a woman's voice." It is submitted that it is exceedingly dangerous to let a witness speculate in this fashion and guess that she heard the cry of a woman. The danger of such evidence is so obvious that it is not proper to receive it.

     The subject as to which this evidence was given was not one of science, skill or art, a trade or profession, as to which the witness had a special knowledge. She did not appear to have had any experience or teaching which would enable her to have formed an opinion on this subject. The facts could be placed before the jury; the cry could be described fully. After the description of the cry had been given the jurors could judge as well as the witness and probably better whether the cry came from a man, a woman, a boy or one of the animals or birds that frequent the North Woods and utter cries. In such a case the opinion of such a witness is not to be taken. and given to the jury.

          Ferguson vs. Hubbell, 97 N. Y., 507.

     This subject about which the testimony is given does not belong to either class of cases in which expert testimony is received.

          Schultz vs. Union Railway, 181 N. Y., 37.

          Littlejohn vs. Shaw, 159 N. Y., 188.

     In Roberts vs. N. Y. & E. R R. C., 128 N. Y., 465, it is said, Peckham, J.: "The rules admitting opinions of experts should not be unnecessarily extended, because experience has shown that it is much safer to confine the testimony of witnesses to facts in all cases where that is praticable, and leave the jury to exercise their judgment and experience on the facts proved."

     It appears from the record that Mr. Carey, her husband, was in the boat with her. He is still living and does not come as a witness. The fact in this case undoubtedly is that when this woman on the next day learned, as she says she did, of the death of Grace Brown in that lake and of the finding of the body, Mrs. Carey's sensibility and imagination was excited and she thought that the day before she heard the cry of a woman. If it had been the body of a boy that was found, her case would have been that she heard a boy's voice. Obviously it is exceedingly dangerous to allow such a woman to speculate in the way this one did concerning the origin of the sound which she heard a long distance across the water, and as to the source or origin of which she had no knowledge whatever.

     To illustrate how material this evidence was regarded by the prosecution and how damaging it was to the defendant, we call attention to the utterance of the district attorney in opening the case. He says, speaking of Grace Brown and the manner of her death, as he claims it: "When her last death cry rang out over the waters of the lake, there was a witness to that and she will be here."

          (Case vol. 1, folio 1965.)

     It is error to allow a witness to say what a cry which she heard indicated; whether joy or grief.

          Messner vs. People, 45 N. Y., 1.

     The opinion by Grover, J., says: "It was for the witness to describe the cries, so as to give the jury as correct an idea as possible, and then for the latter to draw such inferences therefrom as in their judgment were warranted."

     This case is cited in People vs. Smith, 172 N. Y., 231.

Appellant's Point VII

     It was error to submit the two specimens of hair to the jury and let them speculate as to the identity thereof.

     A witness, Mrs. Morrison, said that after the finding of the dead body, she examined the boat and took therefrom a co1lection of a few hairs, which she took and gave them to the coroner, who brought them to the court. She says the specimens of hair came from two separate and distinct places in the boat.

          (Case vol. 2, folios 1283-1287.)

     The sister of Grace Brown produces some hair which she says she cut from her sister's head before burial. And the People deliver the two specimens of hair to the jury, with the suggestion that they are alike in color and derive the inference that the hair in the boat was the hair of Grace Brown.

     This is akin to the practice which has sometimes been resorted to in bastardy proceedings in seeking to make a comparison between the color of the eyes of the illegitimate child and the putative father, or similarity in the color of the hair, which has been condemned as a kind of evidence which is not safe or proper.

          Petrie vs. Howe, 4 Thomson & Cook, 85.

          People vs. Carney, 29 Hun, 49.

Appellant's Point VIII

     It was error to produce the uterus of the deceased and the fetus of the unborn child and receive them in evidence.

     While one of the physicians, a witness for the prosecution, was on the stand the district attorney produced a jar, which the physician testified contained the uterus of the deceased and the fetus of the dead child, which were taken from the dead body of the deceased. After identifying it by the physician, the district attorney offered the exhibit in evidence.

     The defendant's counsel objected that it was incompetent, immaterial, irrelevant and inadmissible; it is in no way connected with the transaction which is charged in the indictment. It is not a part or parcel of the corpus delicti or body of the crime, and the sole purpose of offering it is spectacular and for the purpose of exciting a prejudice and to present a gruesome spectacle to the jury. The court hesitated somewhat and was inclined to exclude it, but finally overruled the objection and gave the defendant exception.

          (Case vol. 2, folios 2374-2391.)

     The introduction of this exhibit in evidence was not necessary. There was no issue on the subject of the pregnancy of the deceased. That was fully testified to by the physicians who made the autopsy. The defendant as a witness admitted it. The defendant's counsel, at the time when this ruling was made, expressly admitted it on the record.

          (Case vol. 2, folio 2386.)

     This evidence was not only unnecessary, but it was immaterial. Neither the pregnancy of the deceased nor the presence or condition of the fetus was connected with the cause or manner of death. No light could thereby be thrown upon the issue as to how this woman met her death. No such claim as that was made by the prosecution or any of the five physicians who testified. The only relevancy of the fact that the deceased was pregnant was that the defendant knew or believed her to be so. If the defendant at the time and times involved in this action, understood or believed that this woman was pregnant and that he was the father of the child, it was of no possible consequence to show that his understanding and belief were correct, or that he was mistaken about it. On the contrary, if the woman was pregnant, even by the defendant, and he had no knowledge or information of her condition, the fact that she was pregnant would not be of the slightest consequence in this case. Hence, we say, that it was not only unnecessary to produce this fetus, but it was wholly irrelevant and immaterial. In any event, the mere statement in the proof, that the fact that the woman was pregnant and its admission on the record, was all the prosecution was entitled to.

     The only object of the introduction of the uterus and fetus was to make a spectacular and gruesome exhibition in the presence of the jury. The effect of it was to further arouse the sympathy of the jurors for the deceased and to intensify their indignation against the defendant.

     Such exhibitions may be made to the jury when it is necessary to show the methods or results of the alleged crime, but when, as in this case, it is not essential or necessary to enable the jury better to understand the conditions or the matter at issue, it is improper.

          Perry vs. Metropolitan Railroad Co., 68 App. Div., 480.
          Perry vs. Metropolitan Railroad Co., 68 App. Div., 353.

     This is the rule in civil cases, when there is only a question of damages. How much more strict should the rule be and how much more care should be exercised to avoid the danger of such evidence when a life is at stake.

     The claim that the contents of the jar were not publicly and formally shown to the jury does not cure this error. The jar was produced in the presence and full view of the jury with a statement of what was in it; there was opening enough in the paper which was on the jar to make the contents visible. The opening was one inch by four inches where the paper on the jar was altogether removed.

          (Case vol. 2, folio 2390.)

     Again, that method of partially showing the contents of the jar with a statement and proclamation of what it was, only served to increase morbid curiosity in the jurors and heighten the dramatic effect of the exhibition. The trial of this case on the part of the prosecution was most spectacular and dramatic in all its stages. It began with reading the letters of the deceased and included this production of her uterus and the fetus taken from her dead body.

     It cannot be said that this error did not prejudice the defendant and should be overlooked. That rule is only applicable in cases where the error could by no possibility has produced injury.

          People vs. Altman, 147 N. Y., 473.
          People vs. Strait, 154, N. Y., 165.

Appellant's Point IX

     The Court erred when it refused and neglected to charge the request of the defendant's counsel that the testimony of the defendant as to how Grace Brown came to her death and showing his innocence, is not to be disregarded or discarded because it is given by the defendant who is charged with the crime in the case and has an interest therein.

          (Case, vol. 3, folio 2698.)

     The Court in its charge made a brief reference to the defendant's evidence.

          (Case, vol. 3, fol. 2629.)

     An examination of the charge given on this point is substantially to the effect that the defendant's credibility was destroyed by the fact that he stands charged with the commission of this crime. All that was said on that subject would easily be accepted by the jury and would ordinarily lead an untrained mind to assume that they were to disregard the defendant's evidence.

     It is respectfully submitted that the defendant was entitled to have the instruction contained in the request, and it was error to refuse to advise' the jury that the evidence of the defendant was not necessarily to be disregarded or discarded because he was the defendant charged with the crime.

Appellant's Point X

     The method by which this trial was conducted by the prosecution was oppressive and unfair to the defendant.

     The examination of the jurors with regard to their voir dire was very unfair and calculated to educate and prejudice their minds against the defendant and against the rule of a reasonable doubt that might arise on the evidence. Of nearly every juror that was examined the question was asked: "Would you modify or change your verdict because the people had no one who went along when the final act was performed to witness it?"
          (Case vol. 1, fol. 887.)

     The defendant objected to this question, but it was overruled.

     That and other improper questions were constantly put to the jurors with the evident intention of teaching them and placing their minds in an attitude of hostility against the defendant and his expected defense. That question was asked and that method was pursued with the jurors who sat on the trial, as well as all who were examined.
          (Case vol 1, folios 1086, 1154, 1319 )

     Repeated objections were made to the aforesaid question which was repeatedly overruled.

     The district attorney in opening the case stated to the jury in effect that he had an eye witness to the death of Grace Brown. He said: "The defendant thought there was no eye watching him, but there was." That statement produced a sensation in the court room and with the jury, because it was well supposed by all that no witness saw the death of Grace Brown. The district attorney was not warranted in making that statement to the jury. He had no eye witness to the affair, but the jury were impressed that there was an eye witness. He tries to parry this statement in its effect in his summing up.
          (Case vol. 3, fol. 2164.)

     In summing up the district attorney was unfair and vicious against the defendant, indulging in statements which were calculated to improperly influence the jury and which were not in the case, but which were entirely outside the evidence. He told the jury the defendant could have called doctors and the people would have paid for them.
          (Case vol. 3, folios 2184 and 2129.)

     He made personal appeals to the jurors and suggestions which were calculated to intimidate them and turn them aside from the consideration of the defendant's case.
          (Case vol. 3, folios 2076, 2104, 2106, 2134.)

     He appealed to the prejudice and sought to inflame the indignation of the jurors, practically arguing to them that they should punish the defendant for his personal treatment of and relation with the deceased.
          (Case vol. 3, folios 2179-2184.)

     He appealed to the sentiment of parental love in the jurors urging them to avenge the wrongs of the deceased and do her justice.
          (Case vol. 3, folios 2203, 2205, 2206.)

     He likened the defendant to a wolf.
           (Case vol. 3, folios 2176, 2194, 2244.)

     Speaking of the defendant, the district attorney says: "He comes to you and looks out of those wolf eyes."
           (Case vol. 3, folio 2184.)

     He speaks of "the fiendish wolf that had stolen-forced" the deceased.
          (Case vol. 3, folio 2227.)

     He talks of the defendant as "A wolf with raving fangs."
          (Case vol. 3, folio 2348.)

     He charged the defendant as having committed rape on the deceased. He said the deceased was ravished by a scoundrel.
           (Case vol. 3, folios 2187, 2251.)

     He says: "The cool, clever, courageous scoundrel went on the witness stand."
          (Case vol. 3, folio 2235.)

     He says the deceased was just there "for him to force and rape."
          (Case vol. 3, folio 2201.)

     He said the defendant was an active worker in the church as a mask. (Case vol. 3, fol. 2178.) There is no evidence of that.

     He speaks about a letter which "the scoundrel wrote."
           (Case vol. 3, folio 2221.)

     He misrepresented what the defendant's counsel had said in summing up about the deceased and proceeded to preach a sermon of sympathy for her from that. He said she had been called a paramour and a prostitute by the defendant's counsel, which was wholly untrue.
           (Case vol. 3, folios 2257, 2258, 2251, 2292, 2026, 1726.)

     He appealed again to the hearts of the jurors to arouse their sympathy. He reads from one of the pathetic letters written by the deceased and then says: "And the rat was up there at the lake sporting with his sweetheart, who went in good society."
           (Case vol. 3, fol. 2313.)

     There is more of the exciting of sympathy.
           (Case vol. 3, folios 2338 and 2339.)

     The district attorney told the jury that the doctor who first saw the body of the deceased was present, that the defense had him at the trial and did not call him. Nothing of that was in evidence.
           (Case vol. 3, folio 2167.)

     He said another doctor was present at the trial who would have testified the same as the doctors called by the prosecution.
           (Case vol. 3, folios 2083, 2088.)

     He said the defendant's counsel had called the doctors who were witnesses perjurers and liars, which was not true.
           (Case vol 3, fol. 2069.)

     He talks much about the action of the defendant's counsel in the case and suggests that the testimony of the defendant had been manufactured and put into the defendant's mouth by his counsel.
           (Case vol. 3, fol 2344 and 2350).)

     He again stirs indignation against the defendant.
           (Case vol. 3, fol 2532.)

     The district attorney was exceedingly bitter and vicious in his abuse of the defendant through all his excited and vindictive argument.

     The defendant objected and took exceptions to all the remarks of the district attorney as far as they could be remembered.
           (Case vol. 3, fol. 2549, 2574.)

     It was impossible to get on the record a competent exception to the general and vicious method and the dramatic appeals of the district attorney on behalf of Grace Brown and the grief she suffered from her condition.

     The effect of all this was to unduly inspire the jury for sympathy for. the deceased, and bitter indignation against the defendant, and to lead the jurors to say: "No matter what the facts are, he maltreated the girl and we will punish him for that."

     This practice of the prosecution was not restrained by the court, and, what is of more importance as it seems to the defense, the jury was not adequately warned or advised against these influences. The consequence was that the explanation by the defendant and the facts in the case which supported and corroborated the theory of suicide was not carefully and competently considered by the jury. In other words, this defendant was not fairly tried. He was swept on to conviction by a tide of indignation which was created and fostered and put into the case by the prosecution.

     Grace Brown died on the 11th of July. The defendant was arrested on the 15th. Immediately an extraordinary term of the Court was called with an extra Grand Jury which sat on the 27th of August, although there was a regular Grand Jury in the following December. The tide of popular excitement and the animus of the prosecuting officer could not wait, so the defendant was indicted August 27th as a matter of course, because the Grand Jury was assembled for the express purpose, and he was arraigned on the 31st. Counsel was assigned, because the defendant had no means. The defendant was ordered to be tried in about six weeks. He was convicted almost as a matter of course.

     It is earnestly urged upon this Court that this trial was characterized by so much bitterness and unfair treatment of the defendant that his conviction is not lawful.

          People vs. Fielding, 158 N. Y., 546.

          People vs. Smith, 162 N. Y., 531.

          People vs. Wolf, 183 N. Y., 464.

Appellant's Point XI

     On the question of the merits there is a fair and reasonable defense contained in the evidence.

     The proof against the defendant is wholly circumstantial. The defendant gives a full and detailed statement which is in effect that the girl in her desperation jumped into the lake and committed suicide. That proposition is well corroborated. It is plainly shown by the letters of the girl and by her repeated statements made at Cortland to her associates, that, in view of her approaching shame and exposure, she contemplated and even threatened suicide.

     Each one of the physicians under cross examination were obliged to admit that they discovered in their post mortem examination some nine or ten different indications of death by drowning. Indications that the girl went into the water not only conscious but active, and her death was that of a drowning person.

     We say that it plainly appears, especially from the cross examination, that the doctors were determined not to assent to or describe any condition at variance with the theory of the prosecution, hut each of them was obliged to do so before his testimony was finished.

     It is respectfully submitted that the defense, if it had received a fair and reasonable treatment, presents to any mind, not inspired by prejudice, at least a clear reasonable doubt. The complaint of the defendant is that he did not, as he ought to have done, receive the benefit of his defense and its legitimate effect upon the verdict.

Appellant's Point XII

     The Court which held this trial was not organized according to the Constitution of the State and had no jurisdiction or power to try the defendant or pronounce the judgment of death against him.

     The term of the Court, at which the indictment was presented and the trial took place, was an extraordinary term appointed and called by the Governor, who also designated the Justice to hold it. No appointment of the term or designation of the Justice to hold it was made by the Justices of the Appellate Division or by any power or authority other than the Governor.

          (Case vol. 1, folios 11, 418-427.)

     The defendant duly raised this point on the motion for a new trial and by a motion in arrest of judgment.

          (Case vol. 1, folios 409 and 435.)

     The appointment of this term and the designation of the Justice was under the provisions of Section 234 of the Code of Civil Procedure. By the Constitution of the State of New York, Section 2 of Article Six, provision is made: "The Justices of the Appellate Division in each department shall have power to fix the times and places for holding special and trial terms therein and to assign the Justices in the departments to hold such terms or to make rules therefor."

     This section was amended with the language in it at the popular election of 1899. Section 234 of the Code of Civil Procedure was adopted in 1895. The Constitution of the State nowhere provides for any other method of calling trial terms or designating a Justice to hold them than the section quoted.

     It is respectfully submitted that when the Constitution prescribed the method by which trial terms of the Supreme Court should be appointed and the Justice to hold them designated, it superceded a mere statutory provision on that subject. The Constitution by this provision takes away the right of the Legislature to provide for or establish a method for the appointment of a trial term or the designating of a justice to hold it. If the organic law of the state provides that the defendant was entitled to have the court which was to hear his case and the justice who was to preside at his trial selected by the justices of the Appellate Division in which his trial takes place, it is an invasion of his fundamental rights to force him to trial and judgment in a court appointed and designated by the Governor of the state. This constitutional right could not be waived and was not waived by the, defendant, although he may in the first instance, have submitted to proceeding with the trial without objection. It is well understood in law that no such a waiver as that can obtain.

Appellant's Point XIII

     The judgment of conviction and punishment by death should be reversed and a new trial ordered.

     All of which is respectfully submitted.

          CHARLES D. THOMAS and

          ALBERT M. MILLS,

     Attorneys for the Defendant and Appellant.

Respondent's Points

STATEMENT.

     This is an appeal from a judgment of conviction of the crime of murder in the first degree, upon the trial of an indictment found by a Grand Jury of the County of Herkimer, charging the defendant with murdering with malice aforethought, one Grace Brown at the Town of Webb, in the said County on the 11th day of July 1906.

      The indictment is printed in the judgment roll in the record Vol. 1, page 6.

      The Judgment of conviction appears in the record Vol. 1, page 112.

      The Notice of Appeal is in the record Vol. 1, 116.

      The Judgment Roll, preceding the case and exceptions, is printed in the record Vol. 1, page 1 to 117 inclusive.

      On the afternoon of the 12th day of July 1906, the body of a young woman, named Grace Brown, was recovered from the water of South Bay in Big Moose Lake. When the body was brought to the surface, there was blood clotted about the opening of the nostrils and some clotted blood started from her nostrils as the body was taken into a boat. Her lips were swollen with a little blood on them. One stocking was down over her shoe and her hair was partly down over her shoulders. The body laid on the back in the water.

      See Vol. 2, Folios 1320 to 1367.

      There was a bruise on her face.

      Vol. 2, Folios 1377.

      Big Moose Lake, being at a remote point in the North Woods, the coroner, when summoned, reached the lake on the following day, the 13th day of July.

      See Vol. 2,.Fol. 1289.

      The body was brought by an undertaker who accompanied the coroner, to Frankfort, in Herkimer County and the undertaker who removed the body testifies that there was a mark under the left eye on the cheek bone, a dark discoloration; lips were swollen and there was an abrasion of the skin there.

      See Vol. 2, Fol. 1390.

      Drs. S. S. Richards, W. E. Hayes of Frankfort and Drs. A. O. Douglass, Edgar H. Douglas and George H. Smith of the city of Little Falls, performed an autopsy on the body at the undertaker's rooms on the 14th day of July, 1906.

      See Vol. 2, Fol. 3397, Fol. 1703, 1704.

      At Folio 1704, the physician testifies that upon inspection found the body of a female, well nourished, height five feet, one inch; weight about 105 or 110 pounds. The lips were swollen and discolored; tip of the nose presented a like appearance, somewhat flattened. The left cheek or malar bone presented discoloration-The right central incisor or tooth was loose in its socket-found an abrasion of the mucous membrane of the lip-this injury to the lip and teeth and nose bad been inflicted before death. Found on the cheek a black and blue spot with a degree of swelling that had been inflicted before death. Found a point of discoloration on the scalp over the right side, about three inches above the ear. On incision, the injury extended beneath the scalp; the blood vessels were ruptured and hemorrhage had occurred at the point of injury. This injury was so great as to lacerate the blood vessels in the periosteum. Beneath the periosteum the blood had clotted about the size of a dime and the injury had penetrated the skull into the brain matter beneath the skull. The injury had produced a small blood clot about the size of a nickel on the brain and the blood vessels in the brain were ruptured. The physicians testify that this injury occurred before death and was necessarily such as to produce unconsciousness from shock.

      The physicians say that in their opinion, the girl died from shock and concussion resulting from a blow or injury that she received on the head before immersion, and if immersion did occur during life, that the efforts of inspiration were so feeble that symptoms of drowning were lacking and air was not taken into the air passages.

      See Vol. 2, Folios 1703 to 1731.

      Dr. Edgar H. Douglas, another of the physicians called by the people, testified as to the results of the autopsy as follows: It is possible to distinguish the marks or injuries upon a dead body as to whether or not the injuries occurred from mechanical force before or after death. About the head of this person in the nature of wounds and injuries, I find on the left malar or cheek bone was a dark discolored contusion; the left eye was ecchymotic and congested. On the tip of the nose and on both lips were contusions and over the left cheek bone found a contusion, a black and blue spot.

      The injury at the cheek extended through the deeper tissues down to the cheek bone. There was a bruise on the tip of the nose; the cartilage of the nose was depressed; the upper lip showed an abrasion on the outside, and a slight abrasion on the inside. The lower lip showed a contusion, right central incisor or tooth was loosened, corresponding with an abrasion of the lower lip; that injury had occurred before the death of the subject; had been caused by mechanical force exteriorly.

      The conjunctiva of the left eye was injected and ecchymotic. Found that the arteries and veins in the eye had been ruptured; hemorrhage had taken place in the anterior and posterior chambers of the eye and a clot formed. Blood flowed out of these ruptured vessels. It had filled the interior and posterior chambers of the eye and clotted there. This injury was caused before death. If it had occurred after death by striking any object or being struck, no blood would have flowed into the chambers of the eye. Such an injury to the eye during life, would cause the person to become immediately blind, unable to see.

      On the right side of the head, over the parietal bone, was a mark about the size of a five-cent piece; this condition existed also upon the underlying tissues, over the skull with some extravasation of blood between the skull and the scalp. I mean by extravasation of blood that the blood had flowed out of the blood vessels; the blood vessels were ruptured; after opening the skull and removing the skull cap the same points of injuries were found on the inside of the skull.- There was a blood clot on the periosteum corresponding with the outside injury, about as large as a five-cent piece; the effect of a blood clot in that place would be to produce unconsciousness; in the covering of the brain was the extravasation of blood and upon incision a blood clot and hemorrhage was apparent in the brain itself; the blood clot on the brain was about as large as a ten-cent piece.- This injury was caused, in my opinion, by some external violence. Such condition as was found to exist in this body would have produced unconsciousness.

      It would have paralyzed or interfered with the respiratory functions; would have rendered the action of the heart extremely weak and feeble. It would have produced concussion of the brain, and probably did. An injury of that nature is dangerous to life; they were sufficient in themselves to cause death on a living subject. A person suffering from injuries such as I have described on being immersed in the water would breathe very feebly, if at all. The cause of death was primarily concussion followed by compression, syncope, death.

      See Folios 2175 to 2241.

      The doctor further testified that a tennis racket striking a blow on the skull protected by a mass of hair, would produce something of the same results as a blow from a sand bag and leave a small exterior mark but a deep injury of the tissue, such as was found in this case.

      See Vol. 2, Folios 2237 to 2242.

      The other three physicians corroborate this testimony, which conclusively established that this woman before death received blows upon the head which in the ordinary course of medical experience would render her absolutely helpless and unconscious.

      See Vol. 2, pages 633-642.

      See Vol. 2, pages 688-696.

      See Vol. 2, pages 743-751.

      The body was taken from the water at a point 135 ft. from the shore; at the point taken out, the water was 7 7-10 ft. deep on the 22nd day of July, 1906, following the finding of the body. From the point where the body was found, the water shoaled rapidly. Less than sixty feet from where the body was found the water was 4 ft. deep. 75 feet from where the body was found the water was 3 ft. deep. The bottom of the lake was soft mud.

      See Vol. 2, Folios 1481 to 1487.

      The autopsy disclosed that the woman was from three to four months advanced in pregnancy.

      This body at the undertaker's rooms in Frankfort was identified as being that of Miss Grace Brown of South Otselic, Chenango County, New York.

      See Vol. 1, Fol. 1983.

      She was the daughter of Frank Brown of that place and became twenty years of age on March 14th, 1906. For two or three years previous to her death, she had been away from home engaged in work in the Gillette Skirt Factory in the city of Cortland. While at Cortland she had made her home with an elder sister, Mrs. Hawley.

      The defendant, Chester Gillette, was a nephew of the manager of this factory, and at the time these events happened was about twenty-three years old.

      See Vol. 1, Fol. 2046.

      He had been a resident of the western part of the United States and at one time had been at Oberlin University or Preparatory School in Ohio. After that he had for some time been employed as a brakeman on a railroad running out of Chicago. He came to Cortland in the early part of 1905; went to work in the factory where Grace Brown was employed and stayed there until Saturday or Sunday, July 8, 1906.

      Grace Brown and he met in the factory and his calls became frequent at her boarding house and continued to be such until Grace Brown left Cortland in June 1906.

      See Vol. 1, Folio 1090 to 2022.

      On October 16, 1905 the relations between the defendant and Grace Brown were sufficiently advanced to lead to correspondence between them of an affectionate nature.

      See Ex. 6, Vol. 1, page 567.

      See Ex. 7, Vol. 1, page 568.

      See Ex. 8, Vol. 1, page 569.

      The relations continued throughout the winter of 1905. The defendant evidently became embarrassed by his relations with the girl in the spring of 1906 and wrote to her expressing a desire to terminate their relations.

      See Ex. 8, Vol. 1, page 569.

      In the meantime, the defendant had become acquainted with girls of a different class of society.

      See Vol. 1, Fol. 2414 to 2426.

      In the meantime his relatives in the factory who heard of his attentions to the Brown girl had remonstrated with him and he in substance denied the affair.

      See Vol. 1, Evidence of Mrs. Ella Hoag.

      Fol. 2073 to 2077.

      See Vol. 1, Evidence of Albert H. Gross.

      Fol. 2091.

      See Vol. 1, Evidence of Harold R. Gillette

      Fol. 2069.

      The above evidence disclosed that the defendant, Gillette, was, during a part of the years 1905 and 1906, carrying on a secret intrigue with Grace Brown and concealing the knowledge of his relationship with her from his relatives and associates in the factory, while at the same time he was keeping company with other young women who moved in a circle other than the one in which Grace Brown moved and was known.

      At some time during the spring of 1906 it is disclosed that Miss Brown became aware of her condition and charged the defendant with responsibility for it and this responsibility he seemed to admit.

      The correspondence or part of it, passing between the parties shows the relationship they bore to one another and their respective attitudes.

      See Vol. 1, pages 570 to 603.

      On the 18th of June, 1906, because of her condition evidently, the girl left Cortland and returned to her home to await the coming of the defendant and the greater part of this correspondence occurred between the 18th of June and the 8th of July and in this it is plainly revealed that the defendant undertook to care for the girl in some manner which was undisclosed to her.

      The entire relationship between the defendant and the deceased seems to have existed and been carried on at her boarding house. So far as the evidence discloses from the examination of many persons who knew them both, he was seen in her company outside of her boarding house only on one occasion.

      The deceased had left Cortland on the 21st of June as above stated. On one evening as the witness said "near the middle of June" he thinks between the 15th and the 20th, the defendant drove with deceased in the night to a hotel on the shore of Little York lake, a resort about six miles from the city of Cortland. The hotel was lighted and there were street cars running between this point and Cortland but this defendant and the deceased girl drove past the hotel in a carriage and drove to the barn.

      The defendant asked for a round bottomed boat and on being unable to secure one took a flat bottomed boat and went on the lake about nine o'clock in the evening. In less than an hour the defendant came back to the barn and called for his horse which the proprietor furnished him and then observed that the deceased was crying. There was scarcely any conversation between the defendant and deceased.

      See Vol. 1, Evidence of Albert B. Raymond,

      Fol. 2103 to 2119.

      Whether or not the defendant on this occasion had in mind disposing of the girl through the instrumentality of a boat and a lake, the people cannot say, but it is sufficiently remarkable as the only occasion discovered when the defendant was in her company outside of her boarding house, to call attention to the act.

      The inquiry for an easy rowing boat with a round bottom might have been entirely natural of course, but in view of subsequent events the people claim that the occurences of that night may have bearing as showing the origin of a careful plan which the people claim and the jury found the defendant subsequently carried out.

      Within a day or two after this trip, the decease returned, as before said, to her father's house to await the arrival of the defendant prepared to accept the responsibility for her condition.

      With these facts in mind, and examination of the correspondence passing between them, the people contend, establishes the following propositions:

      First :-That the defendant promised to come for her, to care for her and make her his wife.

      Second :-That she should not disclose to any one the fact that he was coming for her and that they were to go away permanently or be married.

      Third :-That she must meet him at some point where her friends and relatives would not know the name or he able to recognize the man who went away with her.

      No other reasonable explanation of the various statements passing between the defendant and the deceased, can be made. The correspondence further shows and establishes beyond all doubt that the defendant was reluctant to meet this obligation and that the deceased on the other hand was earnest and determined that he must or that otherwise she would return to Cortland prepared to seek redress for what she considered her injuries.

      It is equally plain from the examination of the testimony in this respect that this latter was a situation which the defendant was earnest to prevent. It is made very plain by the preliminary evidence that with this incumbrance out of his life the situation of the defendant with his relatives in the manufacturing business and social friends whom he had met and made, was far more favorable to him than any he had previously enjoyed.

      After a year's residence in Cortland he had made social acquaintances and friendships which were very favorable indeed and had reached a situation where the disclosure of his relationship with this girl must necessarily have been to him, in his view, attended with the most disastrous results.

      The defendant had a room in Cortland where he lodged which was partially furnished by him, as permanent lodging rooms usually are.

      It was finally fixed by correspondence or other message that the deceased and the defendant were to meet and go away together on Sunday the 8th of July, 1906. About Saturday, the 7th of July, this defendant left Cortland taking with him a dress suit case containing a few articles of extra clothing, a camera and its tripod; a tennis racket in its case.

      He did not give up this room but kept it rented.

      See Vol. 1, Fol. 2184 to 2193.

      At the factory, he told various persons that he was going on a vacation for a week.

      See Vol. 1, Fol. 2097

      Vol. 1, Fol. 2079.

      Vol. 1, Fol. 2068.

      Vol. 1, Fol. 2069.

      Vol. 1, Fol. 2048.

      The defendant had carefully and for a considerable period stated to the deceased that he would come about this date, take her away and care for her, yet his entire actions show that he did not propose so doing.

      He left his belongings at Cortland except such as would suffice for a week's vacation, arranged for a week's absence from the factory and actually had with him on his departure about $25.00

      See Vol. 1, Fol. 2048 to 2058.

      Vol. 1, Fol. 2079 to 2081.

      Ex. 4, page 687, Vol. III.

      Vol. II, Fol. 723 to 726.

      The correspondence reveals that the deceased had urged him to come to her home to plan their future and that he had refused: nevertheless under these circumstances he did make arrangements to meet her at a point distant from her family and with the expressed purpose of departing thence with her to some point not disclosed to her; leading her to believe that their departure was for the purpose of marriage.

      See Correspondence and Fol. 730 to 737, Vol. II.

      From these facts and many others in the record, the conclusion is irresistible that the defendant did not purpose to marry this woman but that the arrangement to meet her at DeRuyter station was for some other purpose than with the intent on his part to make her his wife and return with her as such.

      Their relations had reached such a point that neither party went to this meeting for the purpose of pleasure.

      There can be no question that he was urged to the meeting for the purpose of preventing her return to Cortland, which he knew would follow his failure to appear.

      During the time the young woman was at her home from the middle of June to July 8th, she was engaged in making or having made, various articles of wearing apparel with the idea the people contend of marriage as she expressed in her correspondence with defendant and with his knowledge.

      See Correspondence Vol. 1, Fol. 2234 to 2238

      Exhibits No. 2.

      On Sunday, the 8th of July, the girl's father carried her to the house of a friend in the village of South Otselic.

      See Vol. 1, Fol. 1917 to 1984.

      On Monday morning July 9, 1906, the young woman took the stage from South Otselic to the village of DeRuyter; at which point she reached the railroad running from the city of Cortland to Canastota where the defendant had arranged to meet her.

      See Vol. 1, Fol. 2242 to 2243.

      The defendant left the city of Cortland on the train leaving there Sunday evening, July 8, 1906.

      See Vol. III, Fol. 26 and 27.

      He next appeared at the livery stable of John Coye at the Village of DeRuyter between 8:30 and 9 o'clock of that day. He wanted to hire a livery rig and Hubert Whaley the barn man took him to the proprietor, John Coye. He told Whaley that he wanted a horse to go to South Otselic.

      See Vol. III. Fol. 1585 to 1592.

      The witness John Coye, proprietor of the Taber House, DeRuyter, says that the defendant come into the hotel with Whaley the barn man, between 8:30 and 9:00 o'clock and asked for a horse to drive to South Otselic; was told by the proprietor that his horses had all been out that day and he did not have any to let. He then went out to the door; went through the hall and office; and went out into the hall and that he did not see him about the house again that evening.

      See Vol. III. Fol. 1527 to 1531.

      He did not register at the hotel at that time.

      See Vol. III, Fol. 1536.

      Mrs. Coye, the hotel proprietor's wife testifies that she saw him that night about 8:30 come into the hotel with a suit case and a tennis racket on the side of it and saw him go through the hall to the office but did not see him again that night.

      See Vol. I, Fol. 2469.

      After being refused the horse, it is not disclosed where the defendant spent the time until he returned to the hotel at about 11 o'clock when the office was in charge of Ralph S. Weaver, the clerk. He then asked for a room and registered. He registered under the name of Charles George, N. Y. The clerk took him to his room.

      See Vol. I, Fol. 2461 to 2467.

      He was next seen at breakfast in the hotel at about eight o'clock, July 9th, 1906. After breakfast he retired to his room in the hotel. About 9:30 that morning, the deceased came to the hotel and at about ten o'clock the defendant and the deceased were engaged in conversation together in the sitting room at the Taber House.

      Neither of them took a conveyance from the hotel to the Railroad station at DeRuyter.

      See Vol. I, Fol. 2469 to 2483.

      The defendant made his way from the Taber house to the station alone.

      See Vol. I, Fol. 2483 to 2493.

      The train was late that morning at the depot in DeRuyter. The defendant concealed himself about the depot until the train was moving out of the station, when he got aboard the last car.

      See Vol. I, Fol. 2493 to 2495.

      See Vol. I, Fol. 2502 to 2506.

      During this period of waiting, Grace Brown was alone in the waiting room of the station.

      See Vol. I, Fol. last cited.

      From these acts but one inference can be drawn and that is that the defendant was concealing himself from view and concealing his true name so that it might not be made known that Chester Gillette had been at DeRuyter, and it cannot be doubted that at that time he understood and appreciated that something was to occur in the course of this journey that would make it necessary that he remain unidentified and unnamed as accompanying Miss Brown.

      Both the deceased and the defendant, although separately, boarded the train at DeRuyter going north to Canastota. On this train were two young ladies from Cortland starting on a journey to the Fulton Chain of lakes in Herkimer County. These young ladies were acquaintances and friends of the defendant and soon after the train left DeRuyter he came to their seats in the car and stayed there until the train reached Canastota.

      The deceased evidently at that time occupied some other part of the train. To these young ladies the defendant stated that he got on the train at DeRuyter; that he had come there to meet a young man and that the young man had gone and he was proceeding to Canastota to meet this young man and accompany him to the North Woods.

      He said that this young man had an uncle on Racket Lake and a camp there and he thought he would have a better time if he met the young man and went with him.

      See Vol. 1, Fol. 2510 to 2514.

      He said he was going to Racket Lake camping with his friend; going to stay about a week. The young ladies told him the name of the camp at which they were to stop at Fulton Chain. The defendant then said he might be down at Seventh Lake the last of the week and if he was, he would call Thursday or Friday. He said to them if he was not there by Thursday or Friday he would not be there at all. The appointment was fairly made between the young ladies and the defendant to meet on the Fulton Chain of lakes on Thursday or Friday of that week.

      See Vol. 1, Fol. 2535 to 2539.

      See Vol. 1, Fol. 2514 to 2515.

      The Fulton Chain of lakes commences at Old Forge in Herkimer County with what is known as First Lake; proceeding, one comes to Second Lake, Third Lake, Fourth Lake, Fifth Lake, Sixth Lake, Seventh Lake and Eighth Lake lying in a chain. From Eighth Lake the next lake of importance is Racket Lake occupying the same natural depression and having more or less complete water communication by guide boat from Old Forge to Racket Lake.

      Proceeding northerly from Utica on the railroad, the Chain is reached at the railroad station at Old Forge. To the north of the Fulton Chain a branch of the road runs from Clearwater to Racket Lake and this again touches the lower chain of lakes at a station called Eagle Bay on Fourth Lake.

      Proceeding again northerly from Old Forge on the main line, one comes to the station known as Big Moose, near which lies Big Moose Lake. The distance by rail from Utica to Old Forge is about 52 miles. Proceeding thence by rail, the distance to Big Moose station is about 16 miles. From Big Moose station it is upwards of 50 miles still further north on the main line of Railroad to the Village of Tupper Lake. At Old Forge, passengers leave the railroad for the various points on the Fulton Chain; and also passengers for the upper part of the Fulton Chain proceed by rail to Clearwater and then take the Racket Lake branch to Eagle Bay on Fourth Lake or proceed further to Racket Lake.

      In the conversation between the defendant and the two young ladies, Patrick and Wescott, they disclosed to him that they intended to proceed by rail to Eagle Bay and then to proceed to Seventh Lake where they were to stop in a camp or summer cottage.

      The New York Central & Hudson River R. R. as a part of its summer time tables, publishes complete maps of the lake region with instructions and time tables.

      The defendant on this trip had with him several of these maps. They are in evidence as Exhibits and are numbered 70, 71, 72.

      The entire country above referred to is covered with forests, penetrated only by the railroad and lines of water communication. As a fact, highways are wanting and are for the most part, mere trails through the woods. One of these so-called highways, is a wood road leading from Big Moose Lake to Eagle Bay, on Fourth Lake of the Fulton Chain. By taking this wood road one can make the trip from Big Moose Lake to the Fulton Chain of Lakes in about six or seven miles of travel through the forest. This road was exhibited on the maps that the defendant had with him. Aside from this road the only method of passage from the Fourth Lake of the Fulton Chain in the Big Moose country is by a round about railroad route, or rail and water route of more than thirty miles.

      An examination of the ordinary Adirondack map will reveal the respective locations of these points.

      At Canastota, the young ladies proceeded on their way and the defendant and the deceased next appeared at the Hotel Martin in Utica on Monday evening. The defendant there signed a name to the register "Charles Gordon & wife, N. Y." and asked for a room; here the two remained that night.

      See Vol. 1, Fol. 2547

      See Vol., Fol. 2528.

      The defendant had purchased a 500 mile mileage book at Canastota.

      See Vol. I, Fol. 2546

      Some time the following morning the defendant left the Hotel Martin without paying the hotel bill.

      See Vol. II, Fol. 1 to 4

      At Utica, that morning, the defendant went to the laundry and left a package of clothing to be washed and directed the laundryman to forward the package when done to Chester Gillette, Old Forge, N. Y. Thus it is clearly demonstrated that at that time, the defendant had in mind to appear at Old Forge within a few days under his proper name. It should be remembered that Old

     Forge was one of the two points of departure from the railroad train for the point where the two young ladies from Cortland were stopping on Seventh Lake.

      See Vol. II, Fol. 5 to 11.

      After leaving the laundry package to be forwarded to Chester Gillette at Old Forge, the defendant and the deceased took the train on the Mohawk & Malone Railroad out of Utica going north. They were observed on this train as it passed between Old Forge and Big Moose on Tuesday the 10th of July, 1906.

      See Vol. II, Fol. 30-31

      They reached Tupper Lake in Franklin County at 5:05 P. M. A trunk which the deceased had brought with her from home was discharged from this train at Tupper Lake, showing that when the defendant heft Utica their baggage was checked through to Tupper Lake.

      Thus it appears beyond question that at about the same hour when the defendant meditated appearing at Old Forge some time during the week as Chester Gillette and appearing at Seventh Lake as Chester Gillette to keep his appointment with the two young ladies from Cortland, he also intended to be at Tupper Lake on the night of the 10th under the name of Charles George and wife, New York, N. Y., by which name he registered at the hotel at which they stopped at Tupper Lake village.

      See Vol. II, Fol. 30 to 47.

      In view of these facts and others established at the trial, the people contend that there can be no escape from the conclusion that the defendant intended to rid himself of the deceased between that Tuesday morning and the Thursday or Friday following.

      The night of the 10th these parties stopped at Alta Cliff cottage at Tupper Lake. Tupper Lake is not on a lake; the lake is some distance from the town. It is considerable of a town of several thousand people and if the defendant had any evil purpose in mind, such purpose could not be very well carried out at the village of Tupper Lake, although it was excellently suited either for employment if he wished it or for a quiet marriage if he had so desired.

      The proprietor could not keep them but this one night at the summer cottage and at 7:30 the next morning the defendant and the deceased left this place, returned to the New York Central R. R. station and boarded the 8:15 train south on the Mohawk & Malone R. R.

      The trunk of the deceased girl was checked by him to Old Forge, N. Y.

      See Vol. II, 35 to 42.

      The night before, the defendant met the proprietor of the hotel at Tupper Lake after the young woman had retired. He came to the proprietor and inquired whether there were any nice lakes or high mountains about Tupper Lake. The proprietor told him that there were none near the village; told him of Racket Lake. He asked if he knew of a hotel that was kind of a quiet place; said he would like to get into a nice quiet place. The proprietor told him he could recommend none and the defendant then said he thought he would go up to Racket Lake in the morning and asked if he could have an early breakfast. He said he had been in the mountains for a few weeks and his wife was very tired. He was trying to get home now and expected to spend about two more weeks.

      In this conversation with the hotel proprietor, the defendant told two falsehoods which plainly had for their object to mislead and deceive Mr. Newman, the hotel proprietor on two points. First, as to the place from which they came; Second, as to the point where he intended to go. That the defendant had some object in mind other than wanton falsehood when he stated that he and his wife had been in the mountains for a few weeks and now wanted a quiet place being tired, when as a matter of fact he had come from Utica with her that morning, is evident. It is evident that he already anticipated the events that were to follow on the 11th, and that there might be no trace left as to whence this party had come and whither they were going.

      Immediately after making the statement that he was to proceed to Racket Lake the next morning, he checks the decedent's trunk to Old Forge, N. Y. That he did not intend to spend two weeks at any quiet place for his wife to rest or go to Racket Lake with her in his then financial condition, is self-evident.

      See Vol. II, Fol. 42 to 52.

      The defendant and the deceased on taking the 8:15 A. M. train south from Tupper Lake, were rapidly approaching the final act of this tragedy. The description of the territory in which the events next occurred is found in the case, Vol. II, Fol. 100 to 133.

      The train which they had boarded passed through Big Moose station, Fulton Chain (Old Forge) and thus south into the city of Utica. The defendant and the deceased left the train at Big Moose station but between Tupper Lake and Big Moose the defendant wrote a postal card which he mailed on the train in the mail car attached, to the Gillette Skirt Co., Cortland, N.Y., saying "Please send $5.00 to Eagle Bay, N. Y. so that I can get it Friday. Chester."

      It will be remembered that the trail or forest highway above referred to leads direct from Big Moose Lake to Eagle Bay in the Fulton Chain over the intervening water shed and that by taking this wood road the defendant could by six or seven miles of travel through the woods at once transport himself from one summer community into another although by taking the usual traveled route of tourists, they were many miles apart.

      It is evident that by this postal the defendant intended the $5.00 should be forwarded him at Eagle Bay under his true name, which again makes it evident that the defendant had clearly determined to be at Fulton Chain of lakes on Friday and to be there as Chester Gillette, and not under any of the names he had used on this trip up to this time.

      See Vol. II, Fol. 133 to 139.

      At about the time the defendant was writing this card, it appears that the deceased was also writing a postal to her mother which at the trial both parties desired to have read in evidence, and which was mailed at Big Moose station; the defendant giving it to the bus man who mailed it, as to which the defendant testified fully on his own behalf. This card reads as follows: "Dear Mother, Am having a lovely time. Don't worry. Will write you more tonight about the trip. It was rather unexpected but am glad we are here. Love to all the girls and have them in school. Lovingly Billy."

      This card was posted at Big Moose station July 11th, 1906 and received at the girl's home in South Otselic July 12, 1906.

      It should be understood that both the people and the defendant consented that this card should be read in evidence.

      We believe it to be a fair argument that the defendant arranged both for the writing of this card and for mailing it at the Big Moose station for the purpose of disclosing to the girl's parents her whereabouts; otherwise we say this card would have been mailed on the mail car attached to the train as was the card written by the defendant Gillette to the Gillette Shirt Co., and we urge this more earnestly in view of the subsequent action of the defendant in making known the identity of his companion at the hotel at Big Moose Lake.

      On alighting from the train at Big Moose station, they were approached by a bus man who asked the defendant where they wanted to go. He said he wanted to go to Big Moose lake and on being asked to what hotel he answered any old hotel would do that had boats to rent and was near the lake. The defendant and the deceased were the only passengers from the station to the lake, a distance of two or three miles. She and the defendant had little converse together on the way. The young woman asked the driver what train they could take going south that night and on being told there were none until about eleven o'clock, she said in the presence of the defendant, "Oh dear, I will be tired out before that time."

      As she got out of the bus she said to the driver in the presence of the defendant, "Don't forget us, we want to take that train."

      See Vol. II, Fol. 139 to 176.

      On reaching the Hotel Glenmore, one of the guests who had seen the couple on the train going north the day previous, again observed them. He also observed that the defendant carried a dress suit case with the letters C. E. G. appearing upon it and that a tennis racket was attached to it.

      The defendant entered the hotel and registered under the name of Carl Graham, Albany, N. Y., and immediately below he wrote the name, Grace Brown, S. Otselic, N. Y.

      See Ex. 52, Vol. III, page 696.

      It appears from preliminary evidence that the family of the deceased were fully aware of the attentions paid to her by the defendant, of which he had knowledge. It must necessarily have appealed to him that if she disappeared without her whereabouts being known, inquiry would be directed toward him by her family.

      We believe the defendant formulated a plan of having the girl lose her life in this Adirondack lake in company with an unknown man whose body would not be discovered and that as a part of his plan he appreciated the fact that the place and manner of her death should be communicated to her parents. There can be no other explanation of his deliberately mailing the card at Big Moose to her mother definitely locating the deceased at that point and of his other act of placing her name and address upon the hotel register.

      See Vol. II, Fol. 177 to 181.

      Vol. II, Fol. 223 to 234.

      The defendant and the deceased reached the hotel at about 10:30 A. M. They had had breakfast at about seven o'clock at Tupper Lake. The defendant's funds were very low, of course. He had some talk with the proprietor as to taking a trip about the lake in a steam boat but he did not take the steam boat and within a short time after he reached the hotel he secured a row boat, commonly known as a St. Lawrence boat, at the dock by the lake shore.

      The deceased had left her hat on the rack at the hotel. The defendant had with him a light colored overcoat, a dress suit case, tennis racket and camera. The dress suit case was comfortably filled with clothing. The dress suit case, tennis racket and overcoat he put into the boat, leaving the girl's hat on the rack in the hotel hall, and the girl and he rowed out toward the upper end of the lake.

      See Vol. II, Fol. 223 to 264.

      Vol. II, Fol. 265 to 280.

      Big Moose is an ordinary Adirondack lake, surrounded by forest, and perhaps two miles in its greatest length and from one-half to a mile wide. About its shores are many summer camps and three or four summer hotels.

      One part known as South Bay, is a shallow extension of the lake becoming a swamp at its extremity through which one of the inlets of the lake enters. Because of its shallowness and the morass that surrounds it there are no camps or cottages along its shores.

      Entering this bay from the lake proper is a rather narrow channel and on either side of this channel were buildings the one known as the Moore Camp on the mainland south, and the other known as Covey's Hotel on the promontory extending out into the lake on the northerly.

      The dress suit case in the boat on the lake was naturally an object which attracted attention.

      At the hotel, just before starting, the defendant left the deceased on the veranda. He told the hotel proprietor that he would go up the lake, get dinner at one of the other places, be back for supper and go out on the 11:15 train.

      See Vol. II, Fol. 246 to 248.

      The defendant then came into the hotel and put the decedent's hat on the hat rack in the hall. He then had on a straw hat with a black band. Before he had placed his own hat and coat on the hat rack. Before he left he took his hat and coat off the hat rack and put decedent's hat in

     place of them.

      See Vol. II. Fol. 247 to 250.

      Edward O. Stanley, the owner of Moore camp spent the afternoon about the camp which overlooked the passageway from the lake into South Bay. About one o'clock that day he saw the boat with the dress suit case and the man and woman in it, passing from the lake into South Bay. He was about the rest of the afternoon observing the boats on the lake but did not see it again.

      This passage from the lake into South Bay at its narrowest point was about 1000 feet wide. Across from the Moore cottage was Covey's point called "Camp Craig." The witness Stanley plainly took note of the dress suit case in the boat at one o'clock in the afternoon.

      See Vol. II, Fol. 310 to 313.

      The boat was then going into South Bay. The defendant at this time evidently reconnoitered South Bay and spent the rest of the afternoon rowing about inside of South Bay or between South Bay and the south part of the lake.

      At about 5:15 P. M. Thomas Barrett, a guide, was in a boat in the entrance channel to South Bay and at that time the defendant and the deceased passed his boat going into South Bay the second time but on the north side. He observed the suit case.

      See Vol. II, Fol. 1054 to 1055.

      On this trip the defendant evidently passed in on the north side of South Bay and entered the small cove on the north side of the bay known as Punkey Bay.

      At about twenty minutes of six P. M. Mr. Foster and wife, who were guests at Camp Craig, observed the boat in this cove. They were on the opposite side of the cove from the boat. The defendant's boat was then drifting idly in the cove. As the hour of six o'clock approached, parties on the lake returned to their camps.

      See Vol. II, Fol. 313 to 349.

      Mr. Foster and wife left this cove about 5:45 P. M. and the defendant and the deceased were then in the cove drifting on the opposite shore from Foster.

      See Vol. II, Fol. 318.

      Foster came down the cove and rowed down the bay to Camp Craig. Barrett was on the water near Camp Craig and soon after Mr. Foster came from the cove and down to Camp Craig, Barrett observed the defendant and the deceased in the boat leaving the cove following Foster out, so to speak; "headed toward the south side of South Bay and the man was rowing slowly, one stroke at a time - there was no other boat at that time in this part of the Bay or any other person."

      See Vol. II, Fol. 1055 to 1058.

      It was now very close to six o'clock and Barrett turned his boat around and rowed around a point out of sight of South Bay to the dock at Camp Craig. As Barrett rowed into the dock at Camp Craig with two young boys, whom he had in the boat, Miss Marjorie Stanley, (now Mrs. Carey) was crossing in a boat from the Moore camp to Camp Craig. Mrs. Carey and the gentleman who was with her rowing her boat, came into the dock at Camp Craig having crossed the channel soon after Barrett landed.

      See Vol. II, Fol. 1076 to 1079.

      It must be remembered that the upper part of South Bay from which the body was afterwards taken was concealed from the view to be had either at the Camp Craig or Moore cottage or any camp or habitation on this lake.

      Mrs. Carey testifies that she left the Moore Camp about five minutes of six to row across the channel to Covey's. That as they were crossing the channel as she says "I heard a cry in the direction of South Bay. It was a penetrating cry; was short, seemed to come from a distance from the east shore of South Bay, something I heard distinctly; two syllables. I could tell whether the voice was that of a man or woman. It was the voice of a woman or a young boy; I should say the voice of a woman it was too high pitched to be anything but a woman's voice.

      See Vol. II, Fol. 349 to 360.

      So far as the people could discover, no human being except the witness Mr. Stanley, the guide Barrett and Mr. Foster saw this boat or its occupants on the lake that day, but it is evident that the defendant leaving the hotel about 11 o'clock with the dress suit case, tennis racket and overcoat and in fact all of his belongings in the boat remained for a good part of the time at least in seclusion about the swampy shores of South Bay until the supper hour called all other persons about the lake into the camps, leaving him and the deceased alone in the only lonely and secluded spot on the lake; that almost immediately after Barrett and Foster had left the bay, a single penetrating cry came, from the direction this boat had gone, to the ears of Mrs. Carey.

      The situation of defendant and the deceased between 5:50 and 6 P. M. of the afternoon of July 11th, seems too favorable for the defendant's future plans to have been the result of chance.

      On the south shore, 135 feet from where the body was recovered, was a place where years before lumbermen had drawn their logs into the lake for floating and there still remained a part of these old logs forming a sort of dock at which a boat might land.

      All the rest of the south shore of this bay was swamp or jungle, so rough or wet that one could scarcely pass from a boat to the shore.

      See Vol. III, Fol. 1459 to 1476.

      Fol. 1491 to 1492

      See Vol. III, Fol. 1495 to 1500.

      From this log pile a few rods through the forest took him to the forest road; running parallel to the south side of South Bay and Big Moose lake and lead thence to the foot of the lake, where by following it around the lake it returns to the Glenmore Hotel and Big Moose station and following away from the lake it leads straight over the mountains to another summer community, Eagle Bay on the Fulton Chain.

      Of this road the defendant was at that hour fully informed by the maps he carried.

      See Vol. III, Fol. 1460.

      The defendant and decedent were last seen fifteen minutes of six by the guide Barrett, the defendant rowing the boat directly toward the log pile.

      Before they reached it, Miss Stanley heard the single scream.

      It is established beyond doubt that within a very few minutes a struggle occurred in this boat and that the deceased received at least three violent injuries about the head, one on her lips and nose, one on the left cheek and eye and one above the left ear, that must necessarily have rendered her unconscious.

      See medical testimony before cited.

      The defendant says that the time was 6:10 P. M.

      See Vol. III, Fol. 141.

      The body suffered such violence as to tear and disarrange her clothing, her corset and garters being broken.

      See Vol. II, Fol. 1387 to 1393.

      See Vol. II, Fol. 1363.

      Her head was upon the bottom or sides of the boat and upon each side (undoubtedly by the rocking of the boat upon the water) and had either struck in failing or been removed therefrom with such violence as to leave considerable portions of her hair attached to screws in the seat braces on either side.

      See Vol. II, Fol. 1185 to 1191.

      See Vol. II, Fol. 1198 to 1203.

      See Vol. II, Fol. 1251 to 1256.

      See Vol. II, Fol. 1283 to 1288.

      See Exhibit 92, also

      Vol. II, Fol. 1289 to 1292.

      See Ex. 94, also

      Vol. II, Fol. 1312 to 1319.

      Obviously after this occurred the deceased's body sank in the shallow water of the bay, 135 feet from the log pile before mentioned, where it was observed by searchers on the day following, July 12, 1906, lying on the muddy bottom.

      And after this happening the defendant with his overcoat, tennis racket, umbrella, camera and its tripod and dress suit case, all unwet, reached the shore; to do this required the use of the boat.

      The distance from the mouth of the cove, known as Punkey Bay, where the boat containing the dress suit case was last seen by Barrett, to the point where the body was found being 1000 feet.

      Vol. II, Fol. 1486.

      The elapsed time from Barrett's observation to the hearing of the single cry by Miss Stanley being no more than sufficient to allow the boat to reach the point where the body was found and not being sufficiently long to allow the defendant to row to shore with his belongings and return to the point where the body was discovered.

      From these facts together with many others in the record, the people contend that as soon as secured from observation behind the point shutting off South Bay from camps and cottages, the defendant struck the decedent down in the boat, cast her body over and proceeded rapidly to the shore.

      These few moments in South Bay was the first occasion that deceased and defendant had been out of sight or hearing of others since they had started on this journey, as up to the supper hour, the lake was occupied by many persons.

      The defendant's belongings being safely placed on shore, as shown absolutely by their condition, the boat was turned bottom side up and pushed out towards where the body had been left.

      See Vol. II, Fol. 1161 to 1163.

      See Vol. II, Fol. 1486 to 1487.

      During the afternoon and night of July 11th and on July 12th until the boat was found, the lake had been still and calm.

      See Vol. II, Fol. 1326.

      The deceased took with her in the boat a light silk cape, this cape had been placed or spread over the keel of the overturned boat and in that condition remained until the boat was discovered on July 12th.

      This assertion is made advisedly because no action of wind or water could have spread the light garment upon the high keel in the position in which it was shown to be at the trial.

      See Vol. II, Fol. 1181 et seq.

      The people claim that this article was cast over the keel of the overturned boat by the defendant on his departure, as a further identification of the party who had lost her life at this point; an act of the same nature as depositing her hat on the hall rack, placing her correct name and address on the register at the Glenmore Hotel and mailing the card to her mother at the Big Moose post office.

      The girl's body in the water and all the defendant's luggage safe on shore, the straw hat worn by the defendant was left floating near the shore (Ex. 87) about 20 feet from it.

      See Vol. II, Fol. 1163 to 1164.

      There was evidence that the interior lining which usually furnishes information as to the merchant selling the article, had been just then removed.

      See Vol. II, Fol. 1194 to 1195.

      Vol. II, Fol.1559 to 1564.

      Vol. II, Fol.1570 to 1572.

      The proposition that any person had worn this hat with long threads dangling from the crown, such as is described by the witness Florence Morrison, is utterly impossible and clearly establishes that the defendant first removing the interior lining from the hat to prevent its place of purchase being discovered, cast it on the water for the purpose of inducing searchers to believe his body was in the lake.

      In this he was entirely successful for the search for his body continued all of the l2th and on July 13th and 14th when the true situation was made clear by accident.

      See Vol. II, Fol. 1376.

      The defendant next took a felt hat from the suit case, made the short distance from the shore to the road leading to Eagle Bay and within two hours from the time last seen by Barrett, was observed, carrying the camera, tennis racket and suit case and with a pair of canvass leggings on, well away from Big Moose lake and approaching Eagle Bay.

      This was the point he had planned to reach, alone, and as Chester Gillette when he wrote the postal Ex. 4 on the train that morning and when he made arrangements to visit the young ladies at Seventh Lake.

      See Vol. II, Fol. 393 to 403.

      Vol. II, Fol. 409 to 415.

      The yellow leggings were evidently carefully put on by the defendant on leaving the lake for his journey through the woods, an example of the detail with which his plan had been worked out.

      He had brought with him from Cortland attached to the suit case, a tennis racket, which he subsequently told the Sheriff he had purchased at Cortland for the sum of $6.00, just before starting on this journey.

      See Vol. II, Fol. 1653 to 1657.

      This racket had been observed attached to the suit case as appears throughout the journey, but when he reached Eagle Bay it was no longer with him; along the road between Big Moose Lake and Eagle Bay he stepped aside about 100 feet from the road into the wilderness and buried it in the earth.

      See Vol. II, Fol. 744 to 756.

      See Vol. II, Fol. 783 to 785.

      See Vol. II, Fol. 807 to 810.

      It seems that this act could only have been impelled by great fear or remorse and horror at having this instrument about him.

      As an incumbrance, its weight and shape were unimportant and the defendant thus concealing it, continued to carry with him the far heavier and clumsier camera tripods, although they were scarcely worth, as he says, $1.50, while the more valuable six ounce racket was buried with great care in the depths of the forest.

      This circumstance together with the fact that it was the most convenient weapon, in fact the only one to his hand in the boat, and the nature of the wound on the girl's head, point definitely to the conclusion that the bow of the racket, making the small point of contact with the exterior but producing deep injuries to the tissues and brain was the instrument used by him in disabling the deceased before putting her body in the water.

      It should be remembered in considering these facts that the defendant was an athlete, capable of lifting a boat to his shoulders and walking off with it.

      See Vol. II, Fol. 601 to 602.

      See Vol. II, Fol. 539 et seq.

      Experienced in handling boats of this kind on the water.

      See Vol. II, Fol. 601.

      Vol. I, Fol. 2113 to 2116.

      Vol. I, Fol. 2118.

      See Ex. 9B, Vol. I, Fol. 2351.

      See Ex. 9C, Vol. I, Fol. 2391.

      A reference to the above folios is sufficient to convince that a lake and a boat was the usual sport and plaything of the defendant and sought for by him wherever situated.

      In addition he was a strong swimmer and fearless of immersion in water.

      See Ex. 9B, Vol. I, Fol. 2351.

      See Ex. 9C, Vol. I, Fol. 2391.

      See Vol. III, Fol. 610 to 617.

      Having concealed the racket in the depths of the wood the defendant timed his arrival at Eagle Bay with the arrival of the train coming down from Racquette Lake.

      See Vol. II, Fol. 441 et seq.

      See Vol. III, Fol. 105.

      Eagle Bay consists merely of a hotel on the lake shore and a railroad station on the line some distance from the hotel.

      The defendant had undoubtedly planned to stop at this hotel when he directed the letter to be forwarded to him at that point, but determined that it was too near to the scene of the crime for safety.

      He therefore, after the train had entered the station, walked down to the hotel dock and awaited the arrival of a steamboat, which came in a few minutes.

      He stepped on to this boat with his suit case in hand, camera over his shoulders, as any tourist coming from the Racquette Lake station.

      There was little about him to identify the man who had left the Glenmore with the young lady at 10 o'clock that morning.

      His camera was then concealed in the dress suit case, he had a straw hat and some object strapped to the suit case.

      Vol II, Folios 249 and 266.

      When he came aboard the steamer, he had a gray shirt, with the collar turned up, black slouch hat, canvass leggings, (evidently carried with the intent of journeying afoot through the forest), and a camera over his shoulders.

      Vol. II, Folios 443-444.

      He inquired of the boatman if there was a good place to stop on the lakes above. His clothing was perfectly dry. He left the steamer at its first stop after leaving Eagle Bay, which chanced to be the Arrowhead Hotel on the opposite shore.

      Vol. II, Folios 446-450.

      Having placed the width of Fourth Lake between himself and Big Moose, the defendant rested, apparently secure.

      Leaving the boat, he went into the Arrowhead Hotel,--his clothing appeared entirely dry,--and there was nothing about him to indicate the scene he had left behind at Big Moose Lake, less than four hours previous.

      He approached the office desk and asked the rate for accommodations and what the rates were by day or week and, on being informed, stated to Mr. Boshart, the proprietor; "I expect I have got some friends up at Seventh Lake, and I am going up there in the morning, and if they are there I may stay with them; if not, I will come back and stay here and want to stay here tonight."

      Vol. II, Folios 476-477.

      He then for the first the since leaving Cortland, placed his true name on the register, "Chester Gillette, Cortland, N. Y." and he was now located as he had anticipated when he made the appointment to meet the young women at Seventh Lake; when he directed the laundry to be forwarded to Chester Gillette at Old Forge; and the remittance of $5.00 to be mailed to "Chester Gillette at Eagle Bay."

      The Arrowhead Hotel on Fourth Lake was in touch with each and all of those points; and on being taken to his room, he unpacked his suit case and called for food, which was furnished him,--and the boy who took the food to his room, found him eating an orange which he had evidently brought with him.

      Vol. II, Folios 498 to 505.

      The next day the defendant left the hotel at an early hour and did not re-appear until nightfall.

      Vol. II, Folios 481-482.

      As his appointment with the young ladies was for Friday or Saturday, it seems he did not care to anticipate the date; but instead, on Wednesday he engaged a canoe and started on a 1onely tour of inspection of the upper lakes, taking his dinner at a hotel on Seventh Lake where he again registered as "Chester Gillette, Cortland, N. Y." and made inquiries as to the location of the Misses Patrick and Wescott, while the part of the time not spent in rowing was employed in a journey to a high mountain in the vicinity.

      Vol. II, Folios 538-622.

      That evening on his return to the Arrowhead, he was introduced by the proprietor to various guests and spent the evening in apparent enjoyment of the surroundings.

      Vol. II, Folio 481.

      On the following morning he approached the proprietor and desired to have a pair of trousers pressed, saying that he had got them wet and wrinkled.

      Vol. II, Folios 486-487.

      This would be the natural result to a person fully clothed, engaged in landing on the shore of South Bay, and then over-turning in the water's edge the boat, spreading the silk cape over its bottom and wading out some distance to start the over-turned boat in the direction of the girl's body.

      When apprehended on Saturday following this Thursday, no other wet or soiled clothes, underwear, shirts or collars were contained in this suit case, and the condition of its interior entirely negatived the proposition that clothing soaked with water to any extent had at any recent date been contained therein,--there was not even a shirt as to which the laundered appearance had been destroyed by wetting and the fine interior lining of the suit case and delicate silk collar holders and other articles, which would necessarily have been stained and soiled by contact with water soaked clothing, were all intact.

      See Exhibits 42 (suit case) and contents,

      Exhibits 68 and 83.

      Vol. II, Folios 894 to 912 and Vol. II,

      Folio 507.

     The defendant, without doubt, on reaching the shore and disposing of the girl's cape and boat, changed his trousers, took the canvass leggings, provided by him for that purpose, and slouch hat from the suit case, and rolling up the trousers that had become wet in the process, so that the dry part covered the wet bottoms, put them in the case, until he had them pressed out as shown at the Arrowhead.

      The trousers, as Mr. Boshart says, "Were not wet, damp maybe, but not bad."

      Vol. II, Folio 487.

      On the same morning, he inquired as to the post office, said he expected some mail either at Eagle Bay or Old Forge and wanted to know how to secure it.

      Vol. II, Folio 493.

      On being informed, he went to the nearby post office and addressed a postal card to the postmaster at Eagle Bay, requesting the letter with the $5.00, expected by him at Eagle Bay, to be forwarded to the Arrowhead, although the two post officers were in sight of each other and the defendant was killing time by taking long journeys about the lakes in a boat and in the woods.

      He evidently thought to cover his tracks more securely by not appearing at Eagle Bay, where he was more likely to meet some person from Big Moose, who had seen him at the Glenmore, or who might be searching for the companion of Grace Brown.

      Vol. II, Folios 514 to 538.

      On Friday also, he took steps to secure the package of laundry which on Monday morning at Utica he had directed to be forwarded to Chester Gillette at Old Forge,--he wrote his name upon a paper and gave it to the mail boat captain, asking him to call for the package at Old Forge and bring it up the lake.

      Vol. II, Folios 18 to 20.

      Having made these arrangements for his future comfort and enjoyment of the situation, the defendant spent Thursday and Friday in full enjoyment of the situation, taking care to identify himself and to leave his signature or initials plentifully about the neighborhood, i. e., not only at Arrowhead on Wednesday night, the day of the tragedy, but also at Seventh Lake on Thursday, the 12th, and on the top of Black Bear mountain on Friday, the 13th.

      Thursday he spent in rowing and making photographs on Black Bear mountain.

      Vol. II, Folios 554-572.

      At the Seventh Lake House he told the proprietor that he was looking for some friends on Seventh lake.

      Vol. II, Folio 567.

      Thursday evening he spent visiting with other guests in the hotel parlor.

      Vol. II, Folio 482.

      On this night he became acquainted with a party of guests, who were preparing to make a trip to the mountains on the following day, and the next morning he joined these people on their expedition and had a merry time taking photographs, carving his and their initials and date on the rocky mountain top and cooking beef steak etc. for dinner in the woods.

      Vol. II, Folios 579-595.

      Friday evening he spent with this party in song and conversation on the hotel veranda,--he joined in the songs at times.

      Vol. II, Folio 489; Vol. II, Folio 494.

      To these people the defendant disclosed fully and with great particularity who he was, his business and residence, fully identifying himself to these and other people about the hotel.

      Vol. II, Folio 592.

      That he came from the West, was connected with Gillette Skirt Co., of Cortland, etc.

      Vol. II, Folios 573-576.

      On Friday night, the report of an alleged drowning at Big Moose reaching Arrowhead, he joined in a conversation with some guests in relation to the drowning (so-called) at Big Moose lake, and either made or answered inquiries about the matter as a stranger to it.

      Vol. II, Folio 596.

      About six o'clock on Friday night, the defendant appeared at the post office near the hotel at Inlet (Inlet being the post office of the Arrowhead Hotel.)

      Edward E. Whitford, a teacher in the College of the City of New York, who was then tenting on Seventh lake, came to the Inlet post office and called for mail for parties on Seventh lake. The defendant accosted him and asked him if he knew Miss Josephine Patrick. Whitford said he did. The defendant asked where she was, and Whitford told him that she was at the lake. The defendant then began a conversation with Whitford and told him that he had been about the place and what he been doing and about his trip up Black Bear mountain Thursday. Mr. Whitford said to him that the girls that he was inquiring about had been up on Black Bear mountain on Thursday also, and that the defendant should have met them. The defendant said, he thought that he saw them there on that day, but was not certain. Soon after the talk between Whitford and the defendant at the post office, the Misses Patrick and Westcott came to the Inlet post office from the camp on Seventh lake; and one of them, Miss Westcott, soon met Mr. Gillette. She talked with him a few minutes and called Miss Patrick. Miss Westcott asked him if his friend was still at Racquette lake, and he answered that he had left his friend at Racquette lake on Wednesday and came to Fourth Lake on Wednesday night. She said to him further, "We looked for you on Thursday. I thought perhaps you and your friend would be down through the lakes in a guide boat." The defendant answered that he had come to Inlet on Wednesday, had been on Seventh Lake Thursday, went up Black Bear Mountain, had dinner at the Seventh Lake House, went up to Eighth Lake and took some pictures. He asked her if the camp where she was stopping was next to Barbour's and, on being told that it was, said "he thought he saw them out when he came back, but he was not positive; I asked him why he didn't stop; he said there were a number there; he thought he would not." He further told her that he had been to Black Bear Mountain on Friday in company with two ministers. They had beef steak for their lunch, broiled it over the coals on the mountain, having built a fire there. He further stated that he expected to go home the last of the week, but he was not certain. He said he had written home for money, and he probably would go when that came. He accompanied these girls part way on their journey back to Seventh Lake and made arrangements to go up to their camp and spend the next day, Saturday, with them and made an appointment to meet them at the lower end of Sixth Lake at nine o'clock in the morning. One of the girls said to him, "Chester, you look burned from the sun." He said, "I made two trips to Black Bear Mountain; I went once Thursday and again today."

      Vol. II, Folios 599 to 643.

      It was very difficult to secure from the two young ladies, Patrick and Westcott, a statement of the full conversation had between them and the defendant, as will appear from an examination of the record above cited. The father of the Patrick girl was a witness for the defendant as to character; and the girl herself and the defendant were somewhat intimate friends, as shown by the early evidence in the case; but enough was obtained to establish clearly that the defendant had come to Arrowhead for the purpose of meeting them and, throughout all his journey from the Monday morning when he had the talk with them on the train, had taken steps to reach their neighborhood alone; and that his plans had been carried out in full. His engagement to meet these girls at Seventh Lake on Saturday morning at nine o'clock was not kept for the reason that he was identified as the person who left the Glenmore Hotel with Grace Brown at about eight o'clock on Saturday morning and before he started for Seventh Lake.

      Vol. II, Folio 644.

      During this period, the people at Big Moose were still dragging the lake for the body of Grace Brown's companion, who was thought to be in the water; but information of the girl's death having reached her father, the authorities of Herkimer County came into possession of the postal card which Chester Gillette had mailed on the train on leaving Tupper Lake and, by means of the peculiar post office mark, were enabled to locate the point at which it had been mailed. This led them, without visiting Big Moose Lake, to visit Eagle Bay; and at Eagle Bay post office, they discovered the postal card which the defendant had mailed from Arrowhead to the postmaster at Eagle Bay. These circumstances led to the conclusion that the defendant was the companion of Grace Brown and that he had come with her from Tupper Lake to Big Moose and thence across to Eagle Bay and led the district attorney and sheriff to the spot where Gillette was staying at a time when the people of Big Moose still thought the girl's companion was in the lake. The object of reaching Gillette at this time was, of course, to require of him some explanation of his actions, as the idea of deliberate murder was not entertained until the autopsy, which had not yet been held, disclosed the condition of the body. The defendant evidently had not anticipated being so promptly identified as the companion of Grace Brown and had not formulated a statement or explanation of his part in the transaction. As he came from breakfast at the Arrowhead, he was met by the sheriff, the district attorney and a man from Cortland, an acquaintance of his, named Gross. Gross had seen the account in the newspapers of the recovery of the body of Grace Brown from Big Moose Lake and the statement made therein that her companion was also drowned. From the receipt of the card at the factory and other circumstances, Gross concluded that her companion was Gillette and was going to the woods to search for his body with the card in his possession when met by the district attorney and sheriff and taken with them to identify Gillette. Gross said to the defendant, "Chester, do you know that Billy is drowned?" Gillette said, "No; Is that so?" Gross said, "I thought that you were under the water. Don't you know that she is drowned over here in the lake?" Gillette said, "My God, no; Is that so?" Gross then said to him, "Where were you Wednesday night?" Gillette answered, "I came here." He was then asked, "Where were you Tuesday night?" He answered, "I was at a camp near Racquette Lake." On being further questioned, he became confused; and the sheriff told him that he must come with him, to which he said, "All right." He asked Gross to pay his hotel bill saying that he didn't have the money to pay it.

      Vol. II, Folios 646 to 650.

      On being taken into custody by the sheriff, the defendant was informed both by the district attorney and sheriff that he need answer no questions and that anything he did say would be used against him.

      Vol. II, Folio 675-676.

      The sheriff, on taking the defendant to his room for his clothing said to him, "What are you talking about; you know this girl is drowned as well as I; what did you do this for?" He answered that the boat upset, that it was an accident. The sheriff asked him if he couldn't have saved the girl. And he answered, "He couldn't; he was afraid that if she got hold of him they would both drown."

      Vol. II, Folio 650-655-656.

      Later the district attorney said to him, "How did you save the dress suit case and lose the girl?" In reply the defendant said, "I decline to answer."

      Vol. II, Folios 678-679.

      Later, in a room at the Old Forge Hotel, the district attorney again asked him how it came that the dress suit case didn't get wet. He then said that he and the girl had been ashore reading and had gone out on the lake in the boat a second time to get some pond lilies, leaving the suit case on the shore, and that as he and she got out on the lake and were picking lilies the boat tipped over.

      Vol. II, Folios 700 to 704.

      Thus it appears that on first being questioned as to the suit case he had no explanation to make of its absolutely dry condition and declined to make any explanation; but after waiting some hours, on being again questioned, he makes the statement above quoted, that the condition of the suit case was to be explained by the fact that it was on the shore when the alleged accident to the boat took place. We respectfully submit that if this was the truth, such explanation of the condition of the dress suit case would have been promptly made by him on the first inquiry, and that instead of declining to make such explanation when first inquired of the defendant would have been quick to disclose the fact. Of course, if when this inquiry as to the dress suit case was made of him, the defendant was adopting a policy of silence as to all that occurred his declining to answer this question would have been a part of his general plan of silence at that time; but this was not the fact. He was at that very time attempting to explain what happened on the lake as an accidental over-turning of the boat and the reason why he had not saved the girl, so that his declining to make an explanation of the saving of the suit case was not part of his plan of action at that time; but the question coming to him suddenly, without previous preparation, he had not yet thought of the matter, and the explanation of its being on shore was decided upon by him and answered when again questioned about it two or three hours later. Evidently the necessity of explaining the condition of the suit case and its rescue by him, while abandoning the girl, according to his own theory of an accidental upsetting of the boat, had not appealed to him.

      The tennis racket not being discovered with his other luggage, the defendant was then asked as to its whereabouts. He answered that the umbrella and tennis racket were strapped to the suit case and that he unstrapped them in the boat and that when the boat upset, they were in the bottom of the boat and that the tennis racket at least must be floating on the lake.

      Vol. II, Folios 709 to 712.

      He said that the boat tipped over at about six P.M.

      Vol. II, Folio 716.

      He told the deputy sheriff that the boat was about 175 feet from the shore when it tipped over. At Old Forge, the sheriff inquired of him the second time as to what happened on Big Moose Lake. He then told the deputy sheriff that she was at one end of the boat and he told her to hang to the boat and he would try to get her ashore. The sheriff asked him whether or not he had his hands on her after the boat upset. He said he did not. The deputy then asked him if when she went into the water she came up more than once. At first he said he didn't remember, and finally he said she did,--"She came up near the stern of the boat and he told her to hang to the boat and he would try to get her ashore."

      Vol. II, Folios 718 to 720.

      After being accosted by Deputy Sheriff Klock at the Arrowhead Hotel, the defendant on three different occasions during the day attempted to explain to the deputy sheriff the circumstances attending the drowning in Big Moose Lake, and each explanation was substantially different from the other, as the deputy sheriff testifies at

      Vol. II, Folio 721.

      "The first time he told me he was up doing something with his hat and the boat upset; the next time I asked him, he said he stood up trying to reach a pond lily and the boat upset; and the next time I asked him about the boat was sometime afterwards, and he said he went back to her to talk with her and was crawling back in the boat, backing up, and the boat upset."

      Vol. II, Folio 721.

      He told the sheriff that he knew that she was in a family way and that he had been intimate with her for some time.

      Vol. II, Folio 688.

      That he had met her at DeRuyter on Monday morning.

      Vol. II, Folio 727.

      That they came to Utica and stayed there and that they were not married.

      Vol. II, Folio 729.

      But that they were going to be married on that trip.

      Vol. II, Folios 733-734.

      He said she had been in a family way to his knowledge since May, and that they did not get married at home because he did not want people to know about it.

      Vol. II, Folios 734-735.

      He said the tennis racket was in the boat when he upset, and that was the last he saw of it.

      Vol. II, Folios 741-742.

      After Deputy Sheriff Klock, and the defendant, and the district attorney reached Old Forge, the defendant spent sometime in the company of Granville S. Ingraham, who was one of the deputy sheriffs who had accompanied the district attorney into the woods. The defendant, having already been warned that he need answer no questions and that his statements might be used against him, nevertheless, entered freely into conversation with Ingraham about the mater. Ingraham testifies as follows:

      "I told him that according to the newspaper articles, there was one thing that seemed rather funny to me, and that was the position of the coat on the boat. He replied that seemed funny to him too. He could not understand the position of it. Then, I asked him where the coat was at the time the boat was tipped over. He said it was in the bottom of the boat. I asked him if she was sitting on the coat. He said, 'Yes, she was sitting on the bottom of the boat with her back against the seat.' I asked him how the accident occurred. He said he crawled over towards her on his hands and knees. I asked him if he laid his hand on her; he said, 'No.' He said as he went to crawl back the boat tipped over; they were both thrown out. I asked him if he made any effort to save her; he said, 'No.' I said, 'It seems funny you made no effort to save her at all. Did you think you were going to get ashore by both hanging on to the boat?' He said, 'Yes.' He thought they could work themselves to shore in that way."

      Vol. II, Folios 969 to 971.

      On his being asked a second time in the presence of Mr. Ingraham as to where the tennis racket and umbrella were, which he had with him at the Glenmore Hotel, he said the umbrella was sticking up in the woods somewhere, and he presumed the tennis racket was floating around the lake.

      Vol II, Folio 971.

      The defendant's attitude as disclosed by this testimony, was one of confusion and astonishment. He was undoubtedly surprised and astonished that despite his elaborate plan to cover the route taken by himself and Miss Brown and to leave the impression that she had died in company with an unknown man in Big Moose Lake, nevertheless, the identity of her companion and his relations with her had been so quickly uncovered and all his precautions rendered worthless. The statements made to Deputy Sheriff Klock, if false, when first approached on this mater, might perhaps be explained on the ground of surprise and confusion, and perhaps fear; but being repeated to Deputy Sheriff Ingraham, several hours afterwards in the language last shown, they show a determination on the part of the defendant to adhere to the story that the girl's death was the result of unavoidable accident and such as might occur, and does occur so frequently, to parties boating on these lakes. The explanation was an innocent one, apparently, and is the first that naturally suggests itself on such a happening. The defendant's explanation made to the two deputy sheriffs of an entirely innocent and accidental overturning of a boat is the first that suggests itself to any man on seeing an overturned boat and a drowned body. And this story becomes more important in view of the entirely different explanation given by the defendant when called as a witness at the trial in his own behalf.

      The tennis racket and umbrella not being discovered on or about the lake by the authorities, later the defendant talked with the deputy sheriff and sheriff, while in the Herkimer County jail. After he had been there a week or two, the sheriff told him that the papers had a lot to say about the tennis racket; and the sheriff said, "I will find it if you want I should, and if you don't you need not tell me anything about it." The defendant then told the sheriff that he had left it beside a log on the road from Big Moose to Eagle Bay. The defendant then told the sheriff that while walking along the road, he had stepped off into the woods and put it under a log.

      Vol. II, Folios 748 to 757.

      He afterwards told Sheriff Richard that he had put it under a log and scraped moss and dirt over it.

      Vol. II, Folio 800.

      The sheriff went to the place described by him, found the place where the dirt had been disturbed, took it away and uncovered the tennis racket.

      Vol. II, Folios 807 to 810.

      The racket cords were broken and the handle split.

      Vol. II, Folios 872 to 874.

      The bow was split and the strings broken.

      Vol. II, Folios 1643 to 1649.

      The sheriff previously told the defendant that there was a reward offered for the racket and promised him a part of it if he would disclose its location.

      Vol. II, Folio 858.

      In one of these talks about the racket, he told the sheriff, "He said he landed on the lake shore on South Bay." On being asked how he knew that the Eagle Bay road was near to this lake below, he said "the map showed it; he had a map."

      Vol. 11, Folio 767.

      In a subsequent talk with the sheriff in the jail, following the defendant's indictment by the grand jury of Herkimer County, and talking about the lawyers who had been assigned to defend him by the Court, the defendant stated to the sheriff that he was mistrustful of the ability of his lawyers to meet the case against him, as "the district attorney had found so many little points that he didn't think he could find."

      Vol. II, Folios 1656-1657.

      It will appear from this that the defendant's conduct throughout had been practically an admission of guilt and that his hope of escape was founded, not upon his innocence, but upon the skill with which the crime had been carried out on his part.

      We cannot undertake in this statement of facts to recite all of the evidence produced, at the trial, by the people, pointing to the defendant's guilt. Much other evidence was presented and is contained in the record from which the people contend no reasonable conclusion can be formed, or could have been reached by the jury, in this case except that of the defendant's guilt of the crime charged in the indictment.

      At the trial the defense was embodied in the proposition that the defendant was a moral coward; that a great calamity happened on the lake that day; that he became confused and frightened and wandered away from Big Moose Lake in an unconscious condition, and thus reached Arrowhead. This view is presented by the counsel in opening for the defense.

      Vol. II, Folio. 17.

      The defendant was sworn in his own behalf. The testimony given by him being contained in the record. Direct examination,

      Vol. 3, Folio 23 to 189.

      Cross examination.

      Vol. 3, Folio 189 to 1294.

      The defendant's version of this transaction was very brief, he testifies that he was 23 years old, born in Wickes, Montana, where he lived until he was fourteen, when the family moved into the state of Oregon where he lived for a year and a half. After that he went to Vancouver, Washington, where he went to work in a printing office; after staying there five or six months moved to San Francisco where he also worked as a printer. From San Francisco he went to Hilo in the Hawaiian Islands where he remained some time. After that he was at Oberlin College in the state of Ohio as a student for two years. After that he went to Chicago where he was employed as brakeman for one year and a half on the Chicago, Milwaukee & St. Paul Railroad.

      In March, 1905, he came to the city of Cortland where he was employed by his uncle, N. H. Gillette in the skirt factory that he owned there and remained in his employ until July 8, 1906.

      He testifies that he left Cortland Sunday, July 8, 1906, and went to DeRuyter where he remained overnight. That he met Grace Brown and they each got on the train and went to Canastota and from thence to Utica which they reached at three o'clock in the afternoon and went to the Hotel Martin where they remained until ten o'clock of July 9, 1906. He testifies that on Tuesday morning of July 9, he and the deceased spent the forenoon (Vol. 3, Fol. 36) in riding about the city or walking and after they had lunch they took a train on the Adirondack Division of the New York Central and went to Tupper Lake where they asked the bus driver to take them to Ferncliff Cottage conducted by Mr. Newman.

      He says that Mr. Newman asked him if he had written for accommodations and he said he had not.

      Here he directly contradicts Mr. Newman who testified at Vol. 2, Fol. 44 "I said, Mr. George you should have written to me before you came up here; people who come up here usually write me first so that I can prepare myself for them. He told me he wrote me a letter and I did not get that."

      He further testifies that at a subsequent talk with Mr. Newman (Vol. 3, Fol. 39) he told him that his wife was disappointed with Tupper Lake and was homesick and wanted to return and he would go back in the morning.

      Here he again contradicts Mr. Newman who says that he told him he wanted to find a quiet place or hotel and were going to Racquette Lake.

      Vol. 2, Fol. 49.

      He further testifies that at the next morning they returned to the station, checked Grace Brown's trunk through to Old Forge, kept on that train until they reached Big Moose and that while on the train he wrote the postal card and addressed it to the Skirt Company asking for the $5.00 He further says (See Vol. 3, Fol. 45) "After mailing the postal card I gave one to Grace and she wrote on it; addressed it to her mother at South Otselic and she gave the postal card to me; we left the train at Big Moose. When we left the train I still had the postal card. After arriving at Big Moose we got off there and I spoke to a man that I saw standing in the door there and asked him if he drove--if he was the carriage driver or stage driver and he said he was; he wanted to know where we wanted to go; I told him to Big Moose Lake and he said "All right I will drive around to the back door in a few minutes, and we waited until he drove around there. Then we got in the carriage and started over to Big Moose Lake. Grace had given me the postal card she had written and I had neglected or forgotten to mail it at Big Moose and on my way there I discovered I had forgotten it and asked the bus driver if he would please mail it for us when he went back. I gave it to him and he said he would mail it. That was shortly before we got to Glenmore."

      Here the witness contradicts the stage driver who says the defendant gave him this postal card at Big Moose station and asked him to mail it before he left and that he mailed it at the station before starting, in the post office. (See Vol. 2, Fol. 147.)

      He proceeds and says that he registered and inquired how they could see the lake. The office man told them "To take the small steamer that left about eleven o'clock that morning." That he arranged with the man on the steamer to blow the whistle when he was ready to start, and then went back to the hotel and talked with the decedent; took off his coat and the decedent's hat and put her hat on the rack that was against the wall on one side of the office and hung up his coat; that after talking with the hotel proprietor and at his suggestion he decided to take a row boat; that they went to the boat house and got a row boat and they then proceeded at once along the south shore of the lake and up into South Bay.

      Vol 3, Fol. 59.

      The defendant says that at this time, about the noon hour, he went to the extreme eastern end of South Bay.

      Vol. 3, fol. 67.

      Stayed there from fifteen to twenty minutes; went to the shore of South Bay and went on shore; went about fifty feet from the shore and sat down; that he then got his suit case, took it out on the shore and got some luncheon from it and he says further, "It was kind of damp there, grass was wet so I fixed the suit case near a tree--she sat on that. I then got my coat, it was my gray top coat, gave that to her; we then sat there and ate our lunch and read about an hour. When I got out of the boat I took my camera." We then got into the boat and rowed away from South Bay into the lake and rowed about the lake, stopping at different points and landings, eventually returning up into South Bay.

      That at last they rowed into Punkey Bay (the point where they were seen by Mr. Foster at six p. m., vol. 2, page 79), coming out of this bay, started across South Bay toward the point where the suit case had been left.

      He then says, (vol. 3, fol. 82), "then instead of going straight across we went away up toward the east end of South Bay to get some pond lilies; those we had gotten in the morning were all withered, dried; we went up and got some pond lilies, rowed around or floated around a short time; well kind of drifted and then, well, Grace and I got to talking. We got to talking about what we ought to do; I asked her what she thought we had better do; I said I didn't think we ought to, or that we could keep on as we had been; keep on going as we had been and I thought we ought to do something; I asked her what she thought we had better do; she said, 'I do not know;' we will go down to Fourth Lake as planned and then go back to Utica; or whatever you want to do; I told her that I did not think that we ought to; I did not think we had better. I finally said, I think the best thing we could do would be-well-to get her home and tell her father and mother just everything which had occurred, and explained to her why I thought we might better do that than to have them find it out as they would find it out anyway. She said she could not tell her mother; then she started crying. I spoke up, I said she would not have to tell, I would tell her father about it; I thought if I explained everything to him and went to him, why, it would be all right then and he would forgive us. Then she said, "Well you do not know my father, you never could tell him;" and then I said, what shall we do then, we cannot keep up this way. Then she said, "Well I will end it here and she--well, she jumped into the lake; stepped up onto the boat, kind of throwed herself in. I tried to reach her; I leaned back in the seat in the other end, the bow seat I guess. I tried to reach her then and--well--I was not quick enough; I went into the lake too. The boat tipped over as I started up or when I started to get up; the boat went right over then; of course I went into the lake.

      Then I came up; I halloed--grabbed hold of the boat; then as soon as I could see, to get the water out of my eyes and see, I got hold of the boat or got to the boat. I did not see her. I stayed there at the boat but a minute or two; it seemed like a long time anyway and I did not see her, then I swam to the shore."

      The defendant then proceeded to say that he reached the shore about a quarter of a mile from where he had left his belongings and in answer to his counsel stated, "I went off through the woods there, I kind of started away from the lake; then I kind of followed over where my suit case was then and got my suit case. I put on some dry clothes out of the suit case, I did not have my coat on when the boat went over."

      "Well after I changed my clothes why I struck off through the woods again, kind of away from the lake, (vol. 3, fol. 95), I went through a barb wire fence and kept on going through the woods until I struck a road. Passed two men and kept right along this road; I changed my suit case and hung it over my shoulder; after that I had to carry the racket in my hand. I carried that a short distance, it kept getting in the way, it was mean to handle; so I put it down near the road.

      "Q. Where did you put it from the road?

      "A. Why, I don't know how far; I guess seventy-five feet, fifty feet perhaps; put it near the first log I came to anyway. I put it down behind or beside a log; I don't think I put it under the log. Then I pushed some dirt down over it and left it."

      Vol. 2, fols. 102-103.

      The witness then says he kept on going until he came to a railroad track at Eagle Bay and further "Just as I got there there was a train coming into a station near there and started again. Then I went up towards this station that was on my left hand. It was dark. I went over to this station and saw that it was Eagle Bay station and I went down to the dock from the station where there were some lights; down to the steamboat dock and waited there--in about five or perhaps ten minutes the steamboat came; I got on the steamboat and went over to Arrowhead.

      I registered there and went up stairs and stayed there until Saturday morning. I had my suit case, my camera and my clothes." Subsequently he had told his counsel that when he went into the lake he had on a blue shirt, collar and tie and a union suit of underwear, shoes and stockings, and on being asked as to what he had done with the collar and necktie he answered, "I threw them away where I took them off."

      The witness testified at Vol. 3, fol. 139:

      "Q. Did you strike Grace Brown a blow in the lake or did you put her in the lake or do anything willingly or wilfully to cause her death?"

      "A. No sir."

      The witness further testifies that at Eagle Bay he observed that his watch had stopped at ten minutes past six. The turnkey at the jail testifies that when he reached the jail on Saturday night the watch was taken from him and delivered to the turnkey; and that the watch was running.

      We contend that it is well known that a water soaked watch will not start running of its own accord until thoroughly cleaned and repaired. The defendant makes no suggestion that at any time he had made any repairs to this watch or cleaned it in any way.

      The defendant of course contradicts flatly the witness Barrett who testifies that the boat contained the suit case when the defendant and the deceased passed him in the neck of South Bay going into the bay between five and six o'clock.

      The defendant further continuing his testimony gives fully all the conversation had between the deceased and himself from the time they left DeRuyter and takes the position that all their journeys from Utica to Tupper Lake, from Tupper Lake to Big Moose and the stop at Big Moose station were entirely at her direction and suggestion.

      Vol. 3, fols. 153-154.

      Fols. 162-163.

      Fols. 166-167.

      Fols. 168-171-172.

     and that he was a passive agent under her direction and control.

      The people contend that after careful deliberation, the defendant concluded that his explanation of what happened on the lake as purely accidental would not appeal to the jury, in view of his conduct throughout and he thereupon decided to formulate the story that Grace Brown had committed suicide by jumping into the lake, which tragedy had led to his subsequent conduct.

      We contend that the explanation of his story is found in the fact, that her condition was such as expressed in her letters, as to lead her at times to make despondent expressions; and knowing that these letters were in possession of the people, they would in some measure corroborate his story and would afford him a better chance of escape than the first explanation made by him to the officers at Arrowhead and Old Forge, namely, that while rowing about the lake the boat had been upset by one of the three happenings then described by him and in that way the girl had drowned.

      Upon cross examination (Fol. 401, vol. 3) the defendant testifies that when he left DeRuyter that morning he intended to marry the girl and it was for that purpose they were going away. The defendant says in cross examination that he had the map in his pocket at the lake showing the road to Eagle Bay but that he had not looked to see where the road went before he got to Big Moose and that he did not know that there was such a road as that indicated on the map from Big Moose to Eagle Bay.

      Vol. 3, fol. 432.

      Although when in conversation with the witness Klock on being asked how he knew that the road was near to the lake below, he said to him, "the map showed it," he had a map.

      The defendant contradicts the witness Raymond saying that at no time was he at his place in the night time with the deceased.

      Vol. 3, fol. 204.

      The defendant denied that his relative, Mrs. Hoag, had remonstrated with him for keeping company with Grace Brown and denied that he had talked with Mrs. Hoag about her.

      Vol. 3, fol. 214.

      He also denied that his cousin, Harold Gillette, in the factory, or Bert Gross, the foreman of the factory, had remonstrated with him for keeping company with this girl whom he did not take out with him.

      Vol. 3, fol. 216.

      He denies in part his conversation with the witnesses the Misses Patrick and Westcott. (See vol. 3, fol. 239.)

      The defendant denies that he had told the officer at Fourth Lake that he had gone away from home to marry the girl.

      Vol. 3, fol. 398.

      Despite his possession of the map showing the road from Big Moose to Eagle Bay and despite his statement to the officer that he knew the road from the map he had in his pocket, he nevertheless testified at the trial he had never seen or known or had any knowledge that there was a road leading from Big Moose to Eagle Bay, when he got out of the lake.

      Vol. 3, fol. 450.

      He testifies in his cross examination that he had about $30 on leaving Cortland.

      Vol. 3, fol. 708.

      That he left his clothing, his correspondence and his room as he had occupied it.

      Vol. 3, fols. 696 to 702.

      He testifies that when he left Tupper Lake he had between $10 and $12 in money.

      Vol. 3, fol. 712.

      That despite the low condition of his finances, he made no inquiry as to what the use of a boat at the Hotel Glenmore for all day would cost.

      Vol. 3, fol. 723.

      When the defendant was apprehended he had with him a quantity of exposed plates; he was somewhat of an amateur photographer. None of these pictures had been taken until after he had reached Arrowhead. Evidently in spending the day on Big Moose Lake he had not taken a picture.

      Vol. 3, fols. 740-744.

      Another roll from a kodak film was found in the suit case and while the photographer who examined the photographic material was being examined by the defendant's counsel on the witness stand, he presented these photographs and cross examined him at length as to whether or not the film had been exposed and the photographer said he thought it had not.

      After carrying the examination as to this film to some length his counsel finally announced in court in the presence of the defendant and during the trial as follows: "You need not bother about attempting to develop it; it seems that I am not quite right about it; the boy says it has not been exposed."

      Vol. 2, fols. 1039 and 1047.

      The defendant was cross examined as to this episode and he testified in cross examination that the film in question had never been exposed and that he had told his counsel to stop cross examining about it and he insisted that the film had not been exposed.

      In the meantime, the film had been developed by the photographer and it revealed individual pictures, one of the defendant, Ex. 103, one of Miss Harriet Benedict, a young lady with whom he was keeping company at Cortland in the spring of 1902. Ex. 102 and a series of pictures, Ex. 105 of him and Miss Benedict on an outing, and we think the cross examination sufficiently developed that the defendant knew what the film contained and endeavored during the progress of the trial to conceal it and mislead the Court on this film.

      Vol. 3, fols. 743-768.

      It merely indicates the quick turn of the defendant's mind and his general slyness of action.

      The defendant testifies that he had used the names of Charles Gordon and Charles George on this trip because they corresponded with the letters on his dress suit case, "C. G."

      Vol 3, fol. 784.

      It will be remembered that on reaching the Hotel Glenmore the defendant registered the names Carl Graham and beneath it Grace Brown, S. Otselic. This of course was a remarkable act in view of the previous registrations made by him. On cross examination he was asked why he had written the name, Grace Brown and her address, S. Otselic, in the register at the Glenmore. He answered that he did this because the postal card she had written to her mother from that place.

      Vol. 3, fol. 828.

      As his counsel afterwards explained it in his argument to the jury and also the defendant in later direct examination, he feared that the postal card being read would disclose her true name. An examination of the postal, Ex. 23, page 688, shows that thus explanation is too far fetched as if he had signed any name because of the fear of the postal being read, it would call for the registering of the defendant and the deceased as man and wife, in order to satisfy the suspicions that might be aroused from the contents of the postal.

      After reading his evidence on this point the conclusion becomes still more irresistible that the defendant wrote the deceased's name on the hotel register for the sole and only purpose that her dead body might be identified.

      (See examination as to fictitious names, vol. 3, fols. 779 to 864.)

      The defendant testifies that he had taken a pair of canvas leggings with him from Cortland in his suit case. He had previously testified that he had not determined to go into the woods on this trip and he makes no explanation for taking these articles so appropriate for the journey from Big Moose to Eagle Bay.

      Vol. 3, fol. 897.

      At the Glenmore hotel he testifies that he had a top coat and light coat together with the camera, tennis racket and umbrella, all of which he put in the boat on leaving the hotel. He makes no explanation whatsoever that can appeal to the mind of any reasonable man for putting these articles in the boat on leaving the Glenmore.

      Vol. 3, fol. 898.

      Neither did he make any explanation of the removal of the lining from the straw hat and the condition in which it was found.

      Vol. 3, fols. 899-904.

      He testifies that on leaving the lake he took the leggings out of his suit case and put them on, as he says, "to keep the mud and sticks out of my low shoes; to keep my shoes on; they would not stay unless I put them on."

      Vol. 3, fols. 904-906.

      He says also that he took an "old black felt hat" that he had gotten in Chicago and put it on instead of the straw hat which he left floating on the lake.

      Vol 3, fol. 914.

      He said he threw away the tennis racket which cost $6.00 and kept the camera tripod which cost $1.50 and weighed three times as much and was heavier.

      Vol. 3, fol. 927.

      He testifies in cross examination that in his journeys through the woods he was bitten with black flies and punkies and that these black flies and punkies attacked him in South Bay.

      Vol. 3, fols. 932-938.

      He says that on leaving the boat, he swam about seventy-five feet until he came to where he might touch bottom.

      Vol 3, fol. 943.

      He says that leaving all his possessions at a point in the woods unguarded and unwatched he rowed about out of sight of them for several hours.

      Vol. 3, fols. 967-980.

      He admits lying to the officer when arrested and lying to the people who accosted him when he was first identified as to his knowledge of the transaction at Big Moose Lake and as to his having been there.

      Vol. 3, fols. 107-108.

      In cross examination he says, "I don't know why I did." He admits telling the officer on his way to his room at the Glenmore that it was an accident.

      Vol. 3, fol. 1012.

      He stated in his trial that he could not remember whether or not he had told Mr. Klock that he had tipped over the boat trying to get his hat.

      Vol. 3, fol. 1013.

      He says he did tell him at one point that he was reaching for his hat and tipped the boat over.

      Vol. 3, fol. 1021.

      He partially admits telling him at another time that he tipped the boat over when going back to his seat.

      Vol. 3, fol. 1023.

      He gives no explanation and no reason for telling the falsehoods as to what occurred in the boat.

      Vol. 3, fols. 1029-1031.

      He denies the conversation with Ingraham.

      Vol. 3, fols. 1032-1038.

      He swears that he made no effort to ascertain the depth of the water at the point where the girl went in.

      Vol. 3, fol. 1052.

      The defendant denied that he was at the Tabor House in DeRuyter on Sunday evening at 8:30.

      Vol. 3, fols. 1072-1080.

      He denies that he stopped at the Tabor House barn.

      Vol. 3, fol. 1081.

      He testifies that he went from the train directly to the hotel; registered and went to his room.

      Vol. 3, fols. 1082-1087.

      That he did not try to hire a horse of Mr. Coye to go to South Otselic.

      Vol. 3, fol. 1091.

      That no such transaction occurred.

      Vol. 3, fol. 1092.

      Afterwards in rebuttal both Mr. Coye and his barn man Whaley, as heretofore cited, said he came to them and wanted to secure a horse to drive to South Otselic, or said he wanted one.

      He says that the next morning he met the deceased in the hotel parlor and had some talk with her. When asked to give all the conversation he inadvertently said, "And I then asked her if she had told this girl that I was there and she said no she had not said anything about me at all; hadn't told anybody."

      Vol. 3, fol. 1102.

      It appears that when he first saw Miss Brown at the hotel she was engaged in conversation with a girl whom she apparently knew.

      This lapse into truthfulness on the part of the defendant shows that he then had it in mind and was fearful of his presence with the deceased being made known.

      The defendant denies that he concealed himself at the station and contradicts the testimony of Mr. Tallet as to his getting on the car when the train was in motion at DeRuyter. He also contradicts the other witness on that point.

      Vol. 3, fols. 1106-1111.

      The defendant denies that he told the sheriff and Mr. Ingraham when he was identified at Arrowhead that the tennis racket was in the bottom of the boat and must be floating on the lake.

      Vol. 3, fol. 1154.

      He says he took the racket on this trip to give the impression that he was going on a vacation when he left Cortland.

      Vol. 3, fol. 1158.

      He says he had bought some luncheon in Cortland before starting on this trip which he had in the suit case and which he went on shore to eat.

      Vol. 3, fol. 1160.

      We submit that the testimony offered on the part of the defendant was in no way an explanation of the happening on Big Moose Lake.

      The defendant was urged by the strongest of motives to wit: his future ease and prosperity to relieve himself of the burden which the deceased had become to him. His every action shows careful plans he had formed and which he hoped to carry out successfully.

      The condition of the deceased's body; the evident blows which had been inflicted upon her either in rage or to silence her cries; the tangled mass of hair attached to either side of the boat; the taking of defendant's baggage in the boat and his heaving the boat and body in the manner he did, clearly and conclusively establish the crime.

      His own falsehoods when identified at Arrowhead as to the manner of her death in his company simply go to corroborate the conclusion which is abundantly established by the previous happenings.

Respondent's Points

POINT I.

      The defendant received a fair and impartial trial.

      There was assigned to him as counsel, two able and experienced attorneys.

      Vol. 1, fol. 78.

      The date of the trial was fixed by agreement between Court and counsel; all parties desiring a speedy trial.

      Vol. 1, fol. 127.

      In forming the jury the defense exercised twenty-three of his peremptory challenges and when the jury was pronounced satisfactory the defendant still had seven peremptory challenges remaining unused. The people exercised fifteen peremptory challenges.

      Vol. 1, fol. 243.

      Vol. 1, fol. 215.

      Every challenge to the jurors interposed by the defendant's counsel for cause to the Court was sustained and every juror objected to by the defense for any cause whatsoever was excused by the Court, so that it cannot be said but that the defendant was tried by a jury of his own selection.

      But fifty-eight talesmen were examined as to their qualifications. The sheriff was directed to summon the witnesses desired by the defense at the expense of the county, and these witnesses were paid for their attendance by the county.

      Vol. 1, fols. 390-395.

      Defendant's counsel were also authorized to employ expert witness or witnesses at the expense of the county by the Court, and the compensation of such witnesses was paid by the county.

      Vol. 1, fols. 357-367.

      Both the Trial Court and the District Attorney understood the rule that not only must there be satisfactory evidence to justify and call for conviction of the defendant of the crime charged in the indictment but that also the manner and the method of the trial must be such as to be approved by this Court, and so far as they were able the trial was conducted in accordance with that understanding.

POINT II.

      A defendant indicted for a homicide may be found guilty upon evidence which is wholly circumstantial, and where it appears upon a review of such evidence, that the uncontradicted and unexplained facts and circumstances, proved upon the trial, not only establish the existence of a powerful motive for the commission of the crime by the defendant, but form so complete and strong a chain of evidence as to exclude, beyond a reasonable doubt, every hypothesis save that of defendant's guilt, a verdict convicting him of murder in the first degree will be sustained.

      People vs. Sexton, 187 N. Y., 495.

POINT III.

      The defendant's Point I is not well taken. It was not error to receive in evidence the complete correspondence passing between the deceased and the defendant during their relationship. Both the letters and the defendant's replies thereto form a complete series showing the relation between the parties and the motive of the defendant for the crime charged.

      This correspondence was received in evidence under the authority of this Court. "The relations of the parties to each other and the facts leading up to such relations were competent for the consideration of the jury."

      The letters must have presented to his mind a true picture of his real situation--though the letters were couched in the most affectionate terms, they apprised him of the claims which the deceased made and of her dependence upon him. Whether the situation in which he was placed as depicted in these letters furnished a sufficient motive for him to terminate the relations in the way which he did, was a question for the jury. It would be impossible for us to say that the entanglements in which the defendant became involved in consequence of his relations with the deceased which were presented to his mind by the letters in question might not have influenced his subsequent conduct in causing her death. At all events, it was not, we think, a legal error to allow the letters to go to the jury.

      People vs. Sutherland, 154 N. Y., 345.

      These letters now complained about by the defendant were offered and received on the trial of the case upon the authority of the Sutherland case. In that case the letters of the deceased to the defendant were found in the defendant's trunk after the homicide and were admitted in evidence under objection and exception from the defendant's counsel. This Court held that they were properly received in the above language.

      However, in the Sutherland case it does not appear that both sides of the correspondence were offered, but in this case, not only the deceased's letters were offered but his answers to them or to most of them, making a still stronger ground for receiving the evidence.

      In subdivision "d" of Point I, of defendant's brief, the defendant's counsel recites paragraphs from these letters, concluding with the statement, "The jurors were stirred with the most intense emotion. They were swept on to the verdict of guilty by an irresistible tide of feeling against which no barrier or warning was interposed, except such feeble remarks as the defendant's counsel could make."

      He also says that the paragraph quoted was read with the most dramatic effect as a climax to all the other tender and heartrending expressions that are in those letters.

      An examination of the record will show that this brief is hardly accurate. This paragraph was not read or referred to at all by the District Attorney in his summing up. It is true they had been read about three weeks previous to the summing up, when the letters were read in evidence, but the learned counsel for the defense who makes this brief read them at length with great effect in his closing arguments and as a part of the defense.

      If they were a "dramatic climax" as now charged by the learned counsel, it was a climax that he brought about; and if the jury was swept away by the reading of these passages, the defendant's counsel who makes the brief, certainly did the sweeping.

      Vol. 3, fols. 2044 to 2059.

      Moreover, the Court in its charge to the jury referred to these matters very fully. The Court charged the jury, "That in this case they should exercise great care not to allow to come in a prejudice against the defendant simply because of the relation existing between him and Grace Brown nor the fact of his being the author of her condition, and that the jury must put aside in considering this case all prejudice and feeling of indignation which they might feel against the defendant arising alone from the fact that he was the author of her condition."

      Vol. 3, fols. 2694-2695.

      The Court further charged the jury, "You are not to be controlled or actuated in your final deliberation to the slightest extent in favor of or against the defendant by the reason of public sentiment, if you believe that such exists, or the manifest public interest in the trial. You are to safeguard to the defendant and to the people all the rights which the law and the evidence give. Neither are you to be influenced in any manner by sympathy in the defendant's favor; neither should your judgment be swayed the one way or the other when you recall the sorrows and misfortunes of Grace Brown."

      Vol. 3, fols. 2669-2670.

      It will appear that the defendant's counsel made far more use of these letters and extracts from them in his summing up to the jury, than did the District Attorney. The only use to which they were put by the people aside from their proper use as showing the relations existing between the defendant and the deceased was in the examination of the defendant, he having offered himself as a witness, "thereby placing himself in the attitude of any other witness in respect to the right of cross examination--he thereby subjects himself to the same rules of examination as any other witness and may be asked any question on cross examination or matters relative to the issue--or to give evidence relative to the issue which is injurious."

      People vs. Tice, 131 N. Y., 651.

      The defendant, in his direct examination and in his cross examination had testified to various happenings and the reasons for the journey, and in so doing made many statements as to the attitude of the deceased as to what she said and what she did, and his attention was then called to statements in these letters, some of which he admitted to be true, others of which he said were not true, and he comments made by the District Attorney were made as to his evidence on these points and not as to the declarations of the letters themselves. Where the defendant in his own evidence had made statements as to the actions and declaration of Grace Brown and as to her state of feeling and declarations which were contradictory of statements made by her in the letters to him, he could be fairly cross examined and contradicted as to her attitude by these letters.

      This situation was created by the attempt of the defendant on his own behalf to detail to the jury as his excuse for certain acts what Grace Brown had said to him and desired and wished done, and not otherwise. The case of Willett vs. People cited by defendant's counsel is not in point. In that case the letters were not from the deceased to the defendant, but substantially all of them from third parties to the defendant.

      People vs. Smith, 172 N. Y., 210, cited in the defendant's brief as an authority on this point is not authority at all. In that case, the declarations and statements made by the decedent were to a third party, in the absence of defendant, which, of course, are not admissible. Such declarations or statements to third parties and the law in relation thereto have nothing whatsoever to do with letters and statements made by the decedent to the defendant such as these exhibits were and such as are considered in the Sutherland case in 154 N. Y. As was there said:

      "It cannot be denied that letters or other statements of the deceased that came to the knowledge of the defendant might, under certain circumstances furnish a motive for the defendant's act. If, for instance, these letters disclosed to his mind the fact that the deceased was closed in his mind the fact that the deceased was in possession of some dangerous secret concerning him which he was anxious should never be known, they would be admissible as furnishing a key to his conduct and a possible motive for putting her out of the way. They were admissible if they contained any threats or other statements that had any bearing on the question of motive."

      People vs. Sutherland, 154 N. Y., 353.

      We further say that when the defendant in his own behalf in his direct examination as a matter of defense attempted to say to the jury what Grace Brown's desires and statements to him were, and her attitude toward him was during the period of time covered by these letters, that the people would have a right to contradict such evidence by written statements from her found in his possession.

POINT IV.

     The defendant's second point is invoked with his first and is likewise not well taken. The statement in his brief as to the date of these letters is erroneous. The first letter referred to in that point is dated April 11.

     Vol. 1, fol. 2277.

      The second was dated April 13th.

      Vol. 1, fol. 2290.

      They became competent because they were in answer to or answered by the letter of the defendant to her.

      Ex. No. 8, vol. 1, fols. 2274-2276.

      As was said in the Sutherland case, "The relations of the parties to each other and the facts leading up to such relations were competent for the consideration of the jury."

      People vs. Sutherland, 154 N. Y., 351.

      Exhibit No. 8 was certainly competent as showing the desire of the defendant at that time to break off his relations with the deceased, and at this time also existed the conditions which the people contend were the defendant's motives in this case.      

POINT V.

      The evidence complained of in the defendant's third point was merely addressed to showing that the decedent and the defendant were intimately acquainted in the factory, as is said in the case People vs. Sutherland, it merely shows, "how the defendant became acquainted with the decedent and the fact that he frequently visited her."

      We contend that it became proper for the people in the trial of this case to show somewhat of the relations and attitude of the defendant and the deceased towards each other before they got to Big Moose Lake. The evidence given by Theresa Dillon and Theresa Harnishfeger was of this nature and conversations had with the defendant in relation to this subject with these witnesses, was competent for that purpose.

      People vs. Harris, 136 N. Y., 423.

      Likewise was the conversation complained of between the defendant and the witnesses. Mrs. Hoag, Gross and Harold Gillette.

      People v. Place, 157 N. Y., 601.

POINT VI.

      The matters discussed under the defendant's 4th point were sufficiently proven to be for a jury to consider and not for this Court. The witness Raymond testifies that he had seen other photographs or pictures of the woman who was with the defendant on the night in question.

      Vol. 1, fols. 2128-2129.

      The witness says he would say from the photograph that it was she.

      King v. R.R. Co., 72 N. Y., 607.

      The photographs were properly received in evidence.

      People vs. Ruloff, 45 N. Y., 213.

      People vs. Pustolka, 149 N. Y., 570.

      People vs. Webster, 139 N. Y., 83, and cases cited.

      Archer vs. N. Y. R. R. Co., 106 N. Y., 603.

      Alberti vs. R. R. Co., 118 N. Y., 77.

POINT VII.

      The defendant's fifth point is not well taken. The witness Morrison was the person who found the overturned boat and later assisted in finding the body. His description and observation of the surroundings at that time were competent and the situation then observed by him were the photographs complained of; and for the purpose of describing that, he located the point where the body was found, by a pole in the water, and the point where he found the boat, by a boat. Such arrangement of lay figures did not harm; merely aids in the description and is sustained by the authorities.

      People vs. Jackson, 111 N. Y., 370.

      There has not been a suggestion until the defendant's brief appeared that the boat shown in the photograph was the one used by the defendant on the 11th of July. In fact, the contrary expressly appears; it appears from the testimony of the witness Morrison, that that boat was shipped to Herkimer a week or ten days before the photographs were taken. So, that if the people had any "artful" purpose such as is stated in defendant's brief in Point V, it must have been very clumsily attempted.

POINT VIII.

     The description by Marjorie Stanley Carey of the cry heard by her at about six o'clock p.m. of July 11, was competent, and no error occurred therein as claimed in defendant's Point VI.

      The witness having testified that she heard a cry, she was asked to illustrate the cry. Of course this it was impossible to do. The question was asked her:

      "Q. What was it. What sort of a voice was it?"

      This was an entirely proper question as every one will concede. The witness was now required to convey to the jury such knowledge as she had as to the sound heard by her. What answer could she make? Could she answer, "It was the cry of a loon; the howl of a dog; the hoot of an owl; the whistle of a steamboat, or any other sound in nature which a person of ordinary intelligence and observation might identify? The answer must be that she certainly was competent to testify to such a fact or facts. It is a matter of common knowledge and every day observation that there is a marked and wide difference in the tone and pitch of the male and female voice. In fact, almost every sound in nature has distinguishing characteristics which the common observer is able to distinguish in a great or less degree.

      Though not in view, any man can readily say whether the sound he hears is the crowing of a cock; the cackling of a hen; the note of the bluebird or a robin; the hoot of an owl; and if he is familiar with the adirondacks, the cry of the loon; the call of the wild goose; and to these facts anyone who, has made observation may testify.

      Of course the accuracy of their observation or description and the extent of it is entirely for the witness or jury. In this matter it is evident for the witness or jury. In this matter it is evident that the district attorney in the examination of the witness did not get the answer he expected. He had previously asked the witness whether she could state if the voice was that of a man or woman and on there being an objection had abandoned the question but still seeking to put before the jury something of the knowledge which the witness alone had or could have as to the nature and character of the sound heard by her, he inquired, "What sort of a voice was it?"

      This question put the witness in the exact position defined by the following rule of evidence. "A fact of observation dependent on minutiae such as cannot be described to the jury with the same effect as they justly produce in the mind of an intelligent observer may be proved by the testimony of the witness directly to the conclusion founded from such minutiae, provided that conclusion is itself a fact discerned by the witness in the act of observation though it may be in fact by the exercise of judgment."

      Abbott's Trial Brief on Facts. Page 228.

      Such evidence is not the opinion of the witness as is usually meant by the word "opinion" but is better classed and styled as Abbott has done, "a fact of observation." In other cases, it is called "inference from observation."

      The rule is clearly discussed in Mr. Wigmore's recent work on evidence, Vol. III, Sections 1918 and 1919, together with the authorities bearing on the point and the authorities there cited making the rule very plain, i.e., "Every man must judge the external objects according to the impressions they make on his senses; but after all when we come to speak of the most simple fact which we have witnessed, we are necessarily guided by our impressions. There are cases where a single impression is made by induction from a number of others, as, where we judge whether a man is actuated by passion, we are determined by the expression of his countenance, the tone of his voice, his gestures, and the variety of other matters; yet a witness speaking of such a subject of inquiry would be permitted directly to say whether the man was angry or not. I take it that wherever the facts from which a witness received an impression are too evanescent in their nature to be recollected or are too complicated to be separately and distinctly narrated, his impressions from those facts become evidence."

      Cornell vs. Green, 10 S. & R., 16.

      The above rule was early recognized in the State of New York and is stated in the following language: "The reason of absolute necessity has compelled the testimony of opinion in certain cases where the poverty of human language makes it absolutely impossible to separate in words the minute and transient facts observed by the witness from the inferences as to some other fact, irresistibly connected with the former in his own mind."

      Mayor vs. Pence, 24 Wendell, 675.

      The examination of these cases makes it evident that in calling such testimony "opinion" in the cases last cited, the Court meant, "a fact of observation dependent on minutiae such as cannot be described" such as is defined by Mr. Abbott and above cited.

      Mr. Wigmore cites among others the following: "The true reason why the opinions of witnesses may be given to the jury upon questions not involving skill or science, is because witnesses have a knowledge of the thing about which they speak and have acquired that knowledge in a manner that cannot be communicated; or from facts incapable in their very nature of being explained to others; so that they may state what they know in the best way they can. This best way is by giving in the form of an opinion that which cannot be put in the form of explanation or narration."

      "The very basis upon which this exception to the general rule rests is that the nature of the subject matter is such that it cannot be reproduced or detailed to the jury precisely as it appeared to the witness at the time."

      Syddleman vs. Beckwith, 43 Conn., 12.

      Again it is said, "The ground upon which opinions are admitted in such cases is that from the very nature of the subject in issue it cannot be stated or described in such language as will enable persons not eye witnesses, to form an accurate judgment in regard to it."

      "Will any description of the--tones of the voice--convey to the jury any very accurate impressions, etc?"

      Hardy vs. Merrill, 56 N. H., 241.

      "Evidence of opinion or the conclusion or inferences of the witness drawn from observed facts or from hearing are inadmissible when, from the nature of the case the observation or hearing cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon and no better evidence than such opinion is attainable."

      "The subject must be one of which observation and experience have given the opportunity and means of knowledge which exists in reasons rather than descriptive facts and therefore cannot be intelligently communicated to others so as to possess then with a full understanding of it."

      Van Wycklen vs. Brooklyn, 118 N.Y., 429.

      Schwander vs. Birge, 46 Hun, 69.

      In Ferguson vs. Hubbell at page 513 the Court says: "Opinions are also allowed in some cases where from the nature of the matter under investigation the facts cannot be adequately placed before the jury so as to impress their minds as they impress the mind of a competent and skilled observer, and where the facts cannot be stated or described in such language as will enable persons not eye witnesses to form an accurate judgment in regard to them, and no better evidence than such opinion is attainable."

      Ferguson vs. Hubbell, 97 N.Y., 513.

      It is apparent that the question being put to this witness to describe the voice she heard to the jury she was exactly in the position contemplated by the above well established rule of evidence. The sound was evanescent and the poverty of human language does not allow us to convey to another the tone of he voice. There was no way in which she might describe this sound to the jury so that the jury might say that it was the voice either of a male or female; whether it was high pitched or low pitched; whether it was a high soprano or a coarse bass; but the witness had the fact of observation dependent on minutiae such as could not be described to the jury and she was therefore permitted to testify to the conclusion formed from such minutiae, it being a fact discerned by the witness in the fact of hearing, though in part dependent on the exercise of her own judgment.

      Cowen vs. Hayes, 138 Mass., 185.

      People vs. Ward, 3 N.Y., Crim. R., 483.

      People vs. Adams, 63 N.Y., 621

      People vs. Blake, 73 N.Y., 586.

      Higby vs. Insurance Co., 53 N.Y., 603.

      People vs. Brotherton, 75 N.Y., 159.

      The rule is well stated in Stever vs. R. R. Co., 7 App. Div., at page 399. She was not required to be an expert witness. The difference between the male and female voice being a matter of common observation.

      Wilbur vs. Hubbard, 35 Barb., 304.

      People vs. Fernandez, 35 N.Y., 61.

      People vs. Eastwood, 14 N.Y., 566.

      Greenfield vs. People, 85 N.Y., 84.

      "A lay witness may be permitted to testify to an inference or opinion if that is the only manner in which the fact can be proved or determined and it depends upon a variety of circumstances or a combination of minute appearances, impossible to describe, so that a jury would be able to decide the question."

      People vs. Smith, 172 N.Y., 229.

      Feleska vs. N.Y.C.R.R., 152 N.Y., 344.

      People vs. Burgess, 153 N.Y., 573.

      Therefore there was no better way for the witness to describe or convey to the jury a description of the sound heard by her, and the ruling of the Trial Court was proper. The difference between the male and female voice is a matter of common observation and the witness was permitted to give her inference from her observation, there being no other way to convey the facts to the jury.

      (B) The rule does not require that the witness be infallible in her inferences from what she heard, neither does it require that in all cases there must be a distinguishable difference between the male and female voice. It is only necessary that there be distinguishing features in many cases which a person of common understanding may discern. The question of the accuracy of her observation and inference is not here, but is a matter of cross examination and for the jury.

      The witness in this case was a mature woman, well able to speak. She was the daughter of Mr. Edwin Stanley, President of the U. S. Mortgage and Trust Co. of New York City, and she had spent many summers on this lake and was familiar with the entire surroundings, and also somewhat skilled in music and in the tones of the human voice. Her testimony on this point was worthy to be taken.

      (C) Can then, a witness who has heard a voice state whether it was the voice of a man or woman? The answer must be as a matter of law, "Yes, if she says she is able."

      Reference may be made to many cases of murder in the first degree reported in this state where an examination of the facts testified to by witnesses as contained in the reported opinions show that such testimony is given as a matter of course. Many cases will be found where the witnesses have said without a thought of its being improper, such statements as "The woman was heard to cry;" "A whistle was then heard;

      "The sound of a struggle;" "I heard my wife scream;" "I heard the shutting of a door."

      People vs. Conroy, 153 N.Y., 182 and 186.

      People vs. Smith, 180 N.Y., 129.

      The only thing that makes this matter questionable when we come to examine it closely, is the question of the reliability and accuracy of the witnesses observation, but that question was and must be entirely for the jury.

      The District Attorney in asking the question complained of expected and intended to get the description from the witness that the voice was a high pitched soprano. He got that with something else added, which the Court refused to strike out as being a natural inference from common observation.

      (D) In any event, the evidence of the witness was not prejudicial to the defendant. He himself testified that at the same hour and minute and in the same place, both he and the deceased were precipitated from the boat into the water. The jury after hearing his testimony would say that an outcry from one or the other was natural and to be expected; and the sole question that the jury had to pass on was as to whether this evidence was to be believed or the defendant's actions, as disclosed by the other witnesses, in taking his baggage into the boat,--the hairs of the deceased tangled in the seat braces, and the taking of his belongings through the woods with his baggage intact and dry; leaving the deceased dead beneath the water with marks of great violence upon her head and face showed, together with the other evidence in the case that his story was untrue.

      Obviously the question of whether Miss Stanley heard the voice of a man or woman from the locality was unimportant if the defendant's first story of the accidental upsetting of the boat was the truth; but in any event the objection that the defendant's counsel takes to her testimony is founded upon his dissatisfaction with what she claimed to be able to narrate and not to any legal ground for striking out her statements.

      (e) The two cases cited in defendant's brief on the question of the admissibility of these statements are not in point and have no application to the rule of evidence in such a matter as this. In Schutz vs. Union R.R. Co., 181 N.Y., 37, he question was a hypothetical one and only recites certain facts alleged to have been proven and terminated with the proposition, "What was the cause of that car leaving the track?"

      In Littlejohn vs. Shaw, 159 N.Y., 188, the rule in issue is not referred to or discussed at all and entirely different propositions of expert evidence were under discussion.

      Obviously this question of expert evidence as no reference to statements of witnesses such as "I heard a woman scream." "I heard the man whistle" or a thousand other sounds in nature which have distinguishing characteristics.

POINT IX.

     No error was committed in exhibiting to the jury the tangled hair collected from the braces of the boat together with some hair cut from decedent's head.

      People vs. Buddensieck, 103 N.Y., 487.

      There is no similarity between such evidence and the kind of evidence referred to in the authorities cited in the defendant's Point VII. In such cases as are there cited the object of offering the evidence was to raise an inference of fact because the hair of one person resembled that of another person but the evidence in this case is addressed to an entirely different purpose. If a piece of cloth had been found attached to a nail in the boat it would have been entirely competent to show that it was a piece of the deceased girl's dress by producing a piece of the dress worn by her on that given occasion and putting both in evidence.

      The cases cited by the defendant under this point were urged upon the court as authorities in the Buddensieck case but were held not to be in point. In that case two samples of mortar were submitted to the jury for comparison.

POINT X.

      The defendant, by this point VIII endeavors to create an error in this case where none was made in the trial.

      At the autopsy certain parts of the body observed by the medical examiners were sealed for further investigation. One of these parts was known as Exhibit 99. The doctors had testified to their acts in that regard without any objection. During the trial both sides had experts in court and the people's experts proposed to the district attorney that certain conclusions might be reached from a further examination and dissection of these parts, one of which was an eye taken from the decedent and one of which was contained in Ex. 99.

      One of the people's experts had not been present at the autopsy and he was the person who actually desired to make further examination by dissection while the trial was going on. Before that was done, and before the shape or condition of the exhibits in which they were left at the autopsy was changed or altered, the district attorney thought it prudent to have the medical witnesses identify the several objects, first after the contemplated examination to be had with the view of possible defenses that might be interposed, it would be difficult for the people's witnesses who were present at the autopsy to identify the subject and therefore without the slightest intent or purpose of showing the jury anything whatsoever, a sealed and covered package was shown to the witnesses.

      The district attorney consulted the court about the matter privately.

      Vol. II, fol. 2376.

      The court ruled that the exhibit should not be presented to the jury.

      Vol. II, fol. 2388.

      The district attorney then stated that he did not propose to exhibit the article to the jury but wanted it marked and in evidence, wanted it in the record that it was identified by the witnesses. The court thereupon allowed the witnesses to identify the package. What occurred fully appears in the record. "Exhibit 99 was enclosed in a heavy wrapper which was not removed and the exhibit was not shown to either the court or the jury at any time during the trial. An opening about four includes by one inch was made in the wrapper on the side presented to the witness for the purpose of identification, and shortly thereafter the exhibit was removed from the court room and not again produced during the trial."

      The above being the statement of the court as it appears in the record.

      Vol. II, fol. 2390.

      Despite the ruling of the court that the article should not be exhibited to the jury and despite the statement of the district attorney that he did not propose or desire to exhibit it to the jury and that when such an exhibition was attempted they would have time enough to object and despite the statement and stipulation of the district attorney that he only desired to have the article identified by the witness privately, the defendant's counsel, both of them, became at once clamorous on the subject and insisted, despite the efforts of the district attorney and the court, in dragging into the discussion such matters which might arouse "morbid curiosity of the jurors and heighten the dramatic effect of the exhibition," where in fact there was no exhibition and none offered or intended.

      We may further say that we were not misled by our experts in having this article identified. That we were informed that on two important points a dissection of this article would furnish conclusive evidence; the first as to age, or better, the exact age, and second had there been criminal efforts on the part of these two people toward this matter on this journey. A third point was suggested by the expert that a dissection might aid in determining the question of death from suffocation.

      How much of value on the third dissection might have furnished we leave to experts, as we have no judgment, but this dissection was contemplated then and was carried out later to meet the defense which we had reason to suppose might be interposed, or evidence by way of explanation of the event; and as this dissection was proposed to be done by parties not present at the autopsy, we judged it necessary to identify the exhibit quietly and without in any way making an exhibition to the jury. We were enabled to do so but not without the defendant's counsel doing all in their power to heighten the dramatic effect and increase morbid curiosity, despite the disclaimer and stipulation of the district attorney and the direction of the court that there should be no exhibition to the jury in the matter.

      Both the district attorney and the court were fully informed of the rule that while technically the rule of evidence might authorize the exhibition, yet great care should be taken "not to arouse the prejudice or inflame the passions of the jury into angry resentment." We do not concede that the suggestion of the Appellate Division is the law in these matters, but were willing to abide by it on this trial.

      From time immemorial the blood stained clothing of deceased persons, skulls and other bones have been used in evidence. A phase of this case might have been presented that would have actually justified the exhibition to the jury of these parts, although the prosecution would have been most reluctant to do so and would not have done so and refrained from doing so although it appeared advisable, choosing rather to yield to the defendant's counsel as to these matters; and refrained from exhibiting to the jury anything which might be said to be a "gruesome" spectacle.

      An example of this is the non-production by the medical experts of the injured eye of the dead girl which had been preserved at the autopsy for that purpose; and nevertheless, despite such action by the people, although the defendant was fully informed by the doctors that the eye was in their possession and could have been produced, the defendant's counsel in his summing up for the defense attempted to make the point with the jury that a presumption was to be taken against the people because they had failed to produce it on the trial for the inspection of the jury.

      The counsel for the defense said, "They say in their record of it that they had taken the right eye and preserved it but they do not bring it here, but they undertake to say that it was injured to some extent; they do not even let us see it; do not let us examine the eye to see whether it was injured at all or not."

      Vol. III, fol. 2007.

      Thus we find the learned counsel taking two positions in the case. One is that no parts which might properly be evidence should be produced because they tend as he states to inflame the jury. Then, when the people yield to him and make no effort to produce, he promptly takes the position before the jury that the failure to produce creates a presumption against the prosecution.

      (a) The suggestion in defendant's point VIII that the exhibit was "publicly" shown is absolutely a false statement of fact directly contradictory of the record. The record is true and must be taken as true by this court when it recites, "The exhibit was not shown to either the court or the jury at any time during the trial."

      The nakedness of this case as to prejudicial error is nowhere better shown than in the struggle that the counsel makes in this point by a false suggestion of fact to create a condition of affairs in his brief which is not borne out by the record; and to urge injurious results to his client as a result of matters which did not occur. There was nothing in the entire transaction which would in any wise effect any fair or intelligent juror or even attract his attention except it was the entirely unnecessary clamor made by the defendant's counsel as to the matter.

POINT XI.

      No error was made by the court in the charge as alleged in defendant's Point IX.

      In the body of the charge, the court stated:

      "The defendant, in all cases may testify as a witness in his own behalf, and while his evidence is to be considered as that of any other witness, the jury in determining his credibility should consider the fact that he stands charged with the commission of a serious criminal offense and is interested in the result of the trial, and the jury has the right to disregard the defendant's evidence if they do not believe it to be true; the credibility of any witness may be affected by his interest in the result of the issue or his relation to the case. The weight of the evidence of the defendant as well as that of the other witnesses in the case is left entirely with you for your consideration."

      Vol. III, fol. 2628-2630.

      Thereafter, at the request of defendant's counsel, the court further instructed the jury.

      "That in considering the circumstantial evidence given by the prosecution in this case they must consider and bear in mind the direct statement of the defendant, made by the defendant as a witness, as to the death of Grace Brown and his innocence; and unless the circumstances necessarily exclude and destroy the truthfulness of the defendant's statement, necessarily affect the truthfulness of the defendant's statement, beyond all reasonable doubt the statement of the defendant must be accepted and he must be acquitted."

      Vol. III, fol. 2696-2697.

      This was a far more favorable charge than the defendant was entitled to and it is impossible to put this matter in more favorable or emphatic terms.

      Thereafter, the defendant requesting a further statement by the court on the same proposition, i.e., the matter set forth in defendant's brief at point IX, the court was not obligated to reiterate in different language what had before been fully stated and as the court then suggested.

      "I charged the jury fully as to what there was as to the defendant's evidence. I think I covered that in effect."

      Vol. 3, fol. 2699.

      This court must assume that the members of a jury are at least of average intelligence and we fail to see how it can be said that the above expressions "would lead an untrained mind to assume that they were to disregard the defendant's evidence."

POINT XII.

     The defendant complains in his tenth point of many little happenings in the course of the trial, none of which we believe to be aggravated or serious. The trial of this cause commenced November 12, 1906, and continued without interruption to December 4, 1906.

      During such a trial in this section, the sessions of the court usually began at 9:30 o'clock in the morning and continued until six o'clock p.m., with about one hour's intermission for lunch. The nervous strain that the attorneys are subjected to during such a trial, with such hours of work, is obvious. To a greater or less degree, all counsel at times show the effect of such strain in chance actions or expressions. We believe the people were no greater offenders than the defense and as a whole we contend that an examination of the record will show that for a long continued trial, the good feeling, moderate language and calm demeanor of every one connected with the trial, was remarkable.

      (a) The defense complains of a question asked the trial jurors but fails to quote the question in full. The full question as invariably put in substance and as it is at the point cited in the defendant's brief was as follows:

      "Q. We will assume that you were sworn as a juror; that you have heard all the evidence; that you have considered it and after having done all those things, that there is in your mind from the evidence, and a consideration of it, a firm conviction and an abiding belief that the charge in the indictment is true, would you then change your verdict or modify it because the people had no one who went along when the final act was performed to witness it done?"

      All who have experience with trial jurors know that if the defense to a criminal charge is ably conducted, it is difficult, especially in capital cases, to secure jurors who will enforce the law of the State of New York. It will be conceded that the juror who would not convict of crime unless there was an eye witness, would be unfit to sit and yet that is urged upon jurors invariably as a reason for acquittal.

      The people have the right to know in a criminal case if the juror takes that position. In criminal cases the defense desires the juror to be mystified as much as is possible by legal terms which the jury do not understand. I venture to say that not one juror out of three, on an average, understands clearly what the law means by the term "circumstantial evidence." There is no legal reason therefore why the question addressed to that point in examining a juror should not be put in language of which the juror clearly comprehends the full force and meaning.

      The defendant's counsel are grieved over this question not because of its illegality, but because it laid bare the bugaboo of the term "circumstantial evidence" which they are so fond of urging on the jury as a reason why they should not convict.

      (b) The defendant's counsel says under this point that the district attorney, in opening the case stated to the jury in effect that he had an eye witness to the death of Grace Brown and he quotes an isolated line from the opening without reference to its whereabouts in the case to establish the point. It ought to be sufficient to say that the district attorney did not state in effect that he had an eye witness to the death of Grace Brown.

      The expression referred to occurs in the case vol. 1, fol. 1963. The district attorney had in mind to attempt to describe to the jury the evidence which was expected to be offered by the witnesses Barrett and Foster; that at about the supper hour, the dress suit case was observed in the boat and the defendant and the deceased were seen to leave Punkey Bay rowing to the east side of South Bay; and was a fair statement as to what was expected to be proven and was subsequently proven even more fully by the witness Barrett; i.e., the conversation had with the defendant in the jail, when the defendant disclosed to Barrett that in fact he was watching him.

      (c) The argument to the jury in this case on each side took more than a full day. The defendant's counsel's address contained in it matters which were most outrageous to be addressed to the jury in the trial of the cause.

      Not only the district attorney, the sheriff, the corner and the people's witnesses were subjected to vicious attacks but the laws of the state were condemned by him and held up as barbarous and in fact such as ought not to be enforced. Without right and without any grounds, the entire machinery of the county was asserted by him to be corrupt and vicious in order to create a prejudice in the minds of the jurors against the prosecution. Without fear of contradiction we say that the summing up of the defendant's counsel in this case is, in some of its lines of argument, the most insidious, improper and illegal that could be addressed to a jury.

      At vol. 3, fol. 1662 he says in his argument "There has been arrayed against him the powerful office of the sheriff of this county and all the tentacles of influence and ability that he controls and directs, to reach out and not only gather facts and those things which are not facts from the North Woods, but by taking advantage of this boy when he was incarcerated in a narrow cell over here in the prison, to surround him and talk with him and betray him or mislead him into any statement that he might make, to the end that they could fly away to the district attorney and later bring those utterances here to convict him, etc." "During all the days of this summer the only work that this sheriff has done in the way of discharging his public duties was in connection with this case, etc." "When he came from his private business at the North on Saturday afternoon and from that time until Monday morning when he went back, to visit this boy in his cell in the prison to see if he could not induce him as a part of the extended conversation to make some unguarded remark which could be distorted into evidence against him."

      In vol. 3, fol. 1676 he says, "This improved and enlightened civilization of ours has put into the law of this land a consequence following a verdict in a case of this kind which for refinement of cruelty and barbarity far surpasses any that every existed in this state"-(Here he was admonished by the Court that the argument was not proper, but nevertheless continued.) "After putting into the law the proposition that you may take irons red hot with electricity and apply them to the body of a man until the flesh will burn and the odor arise to heaven reeking with the inhumanity of man to man, do you tell me that a jury should not consider and remember that, as they proceed,"

      At vol. 3, fol. 1694, he says, "before you will subject a fellow citizen to execution by electricity."

      At vol. 3, fol. 1696 he again says, "Mistakes have been made often in prosecutions of this kind and in the examination of cases of this kind. Here in the neighboring state of Vermont two boys were charged with the murder of a man, and circumstantial evidence along was introduced." Here the Court interceded but the counsel persisted in arguing with the Court and in answer to the Court's suggestion says, "It is a part of the history of the criminal law of the country it is will known and understood."

      At vol. 3, fol. 1962, counsel says, "That post mortem examination has got to be considered for a few moments, because I say here, and I charge boldly that that post mortem examination however it may have been conducted, is not brought here in a fair and truthful manner, in fairness and integrity to this young boy, the defendant. I charge in the first place that those doctors belong to a class which are called almost universally in these cases on behalf of the public, as Dr. Richards stated. If ever in the history of this county the graft that is going on here is investigated some of the doctors of the county will figure in the investigation largely. They are paid large fees."

      "These five doctors all came here and report on investigation and post mortem examination which it is thought is so prepared that it will convict the boy of crime. I charge it now (and I know personally every doctor there is on that list) I charge that they did not bring here all the facts that were found in the investigation of that body. They have left out of it and do not report here something that would redound to the benefit of this boy if we only knew it or had any way of finding it out. No doctor representing him was there to see, as is customary in such cases, and nobody to tell us anything about it.

      Now that is a serious statement for me to make to you, gentlemen of the jury, and yet I say that I am borne out in making it, and until some superior power causes me to do it I will retract no word of what I have said about that."

      At vol. 3, fol. 1971, the counsel again states, "and every intelligent man in this court room that heard that testimony knew from the outset that there was a fraud in this post mortem examination."

      At fol. 1974 he says, "Doctor Douglas-got into the office, forsooth, of the District Attorney; and there was made up something which Doctor Douglas says is somewhat a copy of the notes they took-and they were sent out from the District Attorney's office to these same five doctors to show them and tell them what they had found up there at Frankfort on this post mortem examination."

      In the defendant's opening, his counsel stated among other things, vol. 3, fol. 4, "And in passing, and that I may not omit it, let me say to you that immediately after that body had been taken to the Glenmore a physician saw it and examined it for the purpose of ascertaining the cause of death and if the process of this Court is sufficient we shall give you for the defendant the benefit of his attendance and testimony."

      These are only some of the examples of statement constituting an attack upon the entire prosecution which naturally in the heat of debate and argument lead to forcible and vigorous expressions.

      (d) The counsel complains about the statement of the District Attorney in answer to his argument that the county would have furnished them experts. He stated to the jury that they had no means to employ them, whereas as a matter of fact before the trial he had asked for an order authorizing the employing expert testimony at the expense of the county, and the Court had granted the request.

      We concede that it was a matter that should not have been called to the attention of the jury by either side, but the dense having endeavored to mislead the jury as to the attitude of the Court, the people had the right to make the truth known.

      Vol. 1, fol. 366.

      The statement complained of at fol. 2176, vol. 3, is as follows: "he has more stability of purpose, more determination, more cunning than a wolf has got." This was particularly in answer to the long argument of his counsel that the defendant was "an inexperienced boy." The other expressions characterized his evidence as a witness for the defendant in which he was fairly open to attack.

      (e) The counsel says the District Attorney preached a sermon of sympathy for the deceased, which was uncalled for and in order to show his attitude toward the deceased girl, he cites from his arguments. Vol. 3, fol. 1726.

      The language which the District Attorney was replying to is not in fol. 1726 of his address, neither was it contained in fol. 2026 of his address, which are cited by defendant's counsel, but are contained in his argument, vol. 3, fols. 1707-1708, during which the District Attorney understood him to say, and made a memorandum while the argument was in progress, at about fol. 1708, and after where the word motive appears "to rid themselves of the paramour." This expression evidently escaped the stenographer as much in such a summing up often does, but it certainly occurred as shown by the context.

      (f) Defendant states in the general complaint or bill of items, that the District Attorney "suggested to the jury that the testimony of the defendant had been manufactured by his counsel and put into the defendant's mouth." We fail to find any reference to the defendant's counsel at the folios mentioned.

      This argument was not written out and some of it the stenographer got, and some, as he himself acknowledges, more than once he failed to get. We do not believe that it can be spelled out of it that the learned counsel for the defense was a party to the soliloquy there described, any more than he was a party to that one of Hamlet. It was intended to be a description of the line of reasoning in the defendant's mind. The people conceded some reasoning power to the defendant.

      The District Attorney withdrew any remarks or suggestions of which the defendant complained and the Court instructed the jury to disregard all remarks complained of.

      The only defense that the defendant's counsel offered was that the defendant was a boy, an innocent, inexperienced, honest boy, with no evil disposition of any kind, and therefore he could not and did not commit the offense charged.

      We submit that the evidence shows that this was wrong; if the defense stated that he was an innocent, sinless child, the prosecution had the right and it was their duty to take, argue and present the other side of his character. We concede that in a debate over such masses of evidence and a debate which, if the trials are to be successful, must be extemporaneous and vigorous, words and expressions will be used by both sides which our better taste and calmer judgment would omit, but we cannot bring to the summing up of a case of this sort as has been recently said by this Court "the carefully weighed and measured language of judicial opinions."

      We submit that every remark complained of in the defendant's brief consists of "single inadvertant remarks by the District Attorney in summing up the case not persisted in after objection," and contend that a fair examination of the summing up for the people will satisfy the Court that as a whole is consisted of fair arguments and was closely confined to the evidence in the case.

      The defendant's counsel made no objections until the close of the argument, when they made several objections. Every statement that they accepted to, the District Attorney withdrew; the Court said the jury should disregard all the remarks of which they complained, and the District Attorney also asked the jury to disregard every remark of his not supported by evidence.

      Vol. 3, fol. 2572.

      An examination of the case from fols. 2549 to 2576 in vol. 3, will show that the Court expressly and clearly charged the jury to disregard every statement of the District Attorney which the defense complained of, and the District Attorney also said to the jury that these remarks should be disregarded, and attempted to make a fuller withdrawal, but the attorneys for the defendant objected to his so doing.

      Vol. 3, fols. 2572-2573.

      The defense cut short the effort of the District Attorney to meet his views and engaged in a contest with the Court as to whether or not the District Attorney should be allowed the privilege of withdrawing an inadvertant remark made by him and afterward complained of.

      (g) The defense complains that the trial occurred too early. It is usually regarded as a just cause of complaint that trials are too long delayed, and that the administration of criminal justice is inefficient and tardy. However that may be, the reason for an extraordinary Grand Jury in this case was that many of the witnesses were summer sojourners in the Adirondacks.

      There was no Grand Jury in Herkimer county until in December, and in order to get the testimony of these witnesses before the Grand Jury and avoid great expense, and perhaps lose some of the witnesses by their going out of the state, it was deemed wise to have a Grand Jury for this case in August, which is a right given the people by law.

      An indictment having been returned, counsel was assigned to the defendant in Court, and the question was then presented to the court as to when the trial should be had.

      On August 31st, 1906, the defendant was in court with his counsel to plead to this indictment and it was then and there agreed the defendant being anxious for an early trial, that the trial should commence on the 12th day of November, 1906. Neither on the 31st day of August when arraigned, on October 27th when the court was then in session to draw a trial jury for this case and the defendant's counsel were in attendance, or on the 12th day of November when the trial commenced, did the attorneys for the defendant in any way ask or suggest to the court that they were not prepared for trial or ask that the cause be continued for any reason whatsoever. This being so, we suggest that it is improper for defendant's counsel on this appeal for the first time to raise the question that trial was had too quickly.

POINT XIII.

      The power of the Governor to call an extraordinary term of court and the jurisdiction of the court is not questionable.

      Code Civil Procedure Sec. 234.

      People vs. Shay, 147 N.Y., 85.

      People vs. Young, 18 App. Div., 162.

POINT XIV.

      The evidence leaves no escape from the conviction that the defendant committed the crime of murder with premeditation; every fact proven pointed with more or less directness to his guilt of the crime charged in the indictment as is said by this court in People vs. McGonegal, 136 N.Y., 74.

      "If innocent it was his misfortune to voluntarily environ himself in a network of circumstances which to the minds of intelligent men required to reach results by national processes, could admit of no other conclusion than that of guilt. Applying the rigorous rule insisted upon by the defendant's counsel, that the facts must be of such a character that they cannot be accounted for upon any other hypothesis than that of the criminality of the accused, and must demonstrate to a moral certainty that a crime has been committed and that he was its author, we think the verdict in this case is impregnable. The defendant's conduct must be here construed and judged by the standards ordinarily applied in determining the significance of human actions."

      Respectfully submitted,

      GEORGE W. WARD,

      For Respondent.

 

 

 
 
 
 
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