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.

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Appellant's Point I

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.

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.

     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 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

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

      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

      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.

     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.      

      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.

      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.

      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.

     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.

     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.

      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.

      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."

     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.

      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.

      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.