41 A. 136 (Del.O. & T. 1893), State v. Evans

Citation41 A. 136, 15 Del. 477
Opinion JudgeLORE, C. J.
AttorneyNicholson, Attorney General, for the State. Richards, for the defendant.
CourtCourt of Oyer and Terminer of Delaware

Page 136

41 A. 136 (Del.O. & T. 1893)

15 Del. 477




Court of Oyer and Terminer of Delaware, Sussex County

April Term 1893

Sussex County, April Term, 1893.

This was an indictment for murder by putting poison into a well. At the April Term, 1893, after the indictment was found and returned, Richards, for the defendant, asked the court whether or not it was necessary in making affidavit to certain facts upon which to base a petition for the State to pay the fees of certain witnesses for the defense in a case, that the petition should be read in open court, or should it merely be brought to the knowledge of the judges, as is the case when a similar petition is presented to a judge in vacation.

Nicholson, Attorney General, for the State.

LORE, C. J., announced the decision as follows: The Court have considered the suggestion of counsel and the construction of the Act of April, 1881, which provides that the State, in certain cases, may pay the expense of witnesses for the defence, and while it does not come before us formally, and we do not desire that this may establish a precedent, yet we are willing to express our judgment of the effect of that statute.

We think the suggestion made that the petition may be presented to a judge in vacation, as well as in Court, does not change the character of the petition at all, but the former method is pursued for the purpose of facilitating business, but the paper itself is a part of the record and a public document. I remember very well in New Castle County that in every case, I think, the petition has been read in open Court, and the State, represented by the Attorney General, had the opportunity to observe, for instance, that the evidence was not material, or that the affidavit was not in proper form, etc. You are not bound to set forth in detail your evidence, but simply the nature of it, broadly and fully enough in it, however, to inform the Court and the Attorney General what you propose to prove, but not your matter of proof.

We think, therefore, that it must be subject to the inspection of the Attorney General and read in open Court. There is but one class of affidavits that are not public, that is such as affidavits of demand. With that exception I know of no affidavit which can be made that is not a part of the record and must be read in open Court.

The case came on to be tried at the same term. The evidence which was circumstantial consisted mainly, on the part of the State, of proof tending to show that the defendant who then resided at Tacony in the State of Pennsylvania had been on the 4th of August, 1892, in and about the neighborhood of the farm of his brother-in-law, John Rosser, near Oak Grove, in Seaford Hundred, Sussex County. Rosser and his wife were on that day absent attending camp-meeting, and on their return at midnight there were indications that something was wrong about the water of the well which attracted attention, but on the following morning the peculiar appearance of the water had disappeared and it was clear. Subsequently, the water being used freely, all the persons residing in the house became ill, the symptoms being such as would naturally indicate that they had taken into the stomach some corrosive poison, and an infant child, Raymond Rosser, after being ill from Friday, August 5th, died at midnight of the following Tuesday. All the animals on and about the place which drank the same water were similarly affected, The case of the State was that the poison was the result of putting into the well arsenic or some preparation thereof, while the theory of the defence was that the poison, if any, was occasioned by Paris green which had been about the house. There was medical testimony to the effect that the child died from arsenical poisoning and experts were examined to show what would have been the effect of putting into the well both arsenic and Paris green. The testimony of Dr. Harlan Wallace and Dr. Theodore R. Wolf, who were examined as experts, was to the effect that upon analysis the water gave indications of the presence of arsenic.


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