The Elk Mountain pilot., 1882-02-16

WHAT DOLLZSON DLDN +
SAY ABOUT 1HT WARE
CASE.
Mr.. EDITOR -
1t is not often that courts make
personal explanation Of their judicial
action, nor do they usually retry caus-
es in the public prints. This is not
however always true of Justice W.
Dollison, as see his card published in
your issue Of Jan. z6th., wherein he
handles the Ware case without gloves,
telling the people his reason for dis
charging Ware and promptly laying
the whole blame thereof at the door
of the prosecution. My interest in
the examination of Ware and in the
card of the court who told him ''to
go and sin no more" would be that Of
every other citizen, but for the fact
that I in my poor way, was attorney
for the people in that case, and if the
position of the court is well taken, I
am the one to be damned.
I quote from the card Of Justice
Dollison the only reason assigned by
him for his action: "That the pros
ecution failed to show by the testimo-
ny of tae witnesses that deceased came
to his death by reason CT any injury,
received at the hands Of the defend
ant, in consequence OF the unlawful
action Of defendant, as testified 10 by
witnesses for the prosecution" On,
Justice! how many wrongs are done
III thy name. f"
Sec. 237 Of the Criminal code pro-
vldes that in preliminary examinations
the Judge Or Justice Of the Peace
before whom any person Or persons
charged with criminal otfense shall
be brought "Shall inquire into the
truth or probabilities of the charge
exhibited against such prisoner or
prisoners by the cath Of all the ~itT
nesses attending; and shall upon the
consideration of the facts and eiream-
stances then proved either commit
such person or persons so charged to
Jail, admit him or them to bail or dis
charge him or them from custody"
In my opinion it was, under this
section OF the law, the duty Of exam
ming mag istrate Dollison in the Ware
case to consider all the Jaets and nr-
f1mstances IN proof that went to the
question Of tae shooting and death of
JOS. Bohn.
There is we'll recognized distinction
between the 'preliminary examina-
tom Of person charged with crime
and the "trial'' of that person. The
chief distinction is that only a
probability need be made out on an
examination to justify magistrate in
holding the person charged to await
the action of the grand jury; while
in q trial the evidence in order to
warrant conviction must fix the
crime upon the person charged "be-
yond a reasonable doubt" The
former proceeding is intended under
the law above cited to provide means
whereby the "truth or probability"
of the charge may be inquired into,
and in doing this the magistrate must
take into consideration the facts ind
circumstances there proved. In the
latter proceedings the only purpose
of the court is to determine the Qes-
ton of guilt OF innocence. 1t follows
then that in preliminary examination
much less evidence is required than in
trial for the reason thai L probability
is more easily established than Ger
talnty.
The authorities cited by the justice
IN Wharton's American Criminal Law,
are Of no value In supporting his posi-
ton. They refer to positive proof Of
death as a direct result of the blow.
That positive proof is made unneces-
sary by the statute above cited, which
permits the court to find from the
circumstances every element necessary
to establish the t,s5adiAy that crime