St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1886-04-02
KELLY HELD.
Commissioner Spencer Gives His Decision
in the Long Drawn Out
Case.
He Says He Cannot Do Otherwise Than
Hold the Prisoner for Extra
dition.
Reasons for the Decision--E Eminent
Authorities Quoted To sustain
the Points.

Il OldltS commissioner spencer Eeu-
dered his decision Yesterday In the Bulldog
Kelly case, which has been drawn out so
tediously. The defendant was taken TO the
commissioners room at , o'clock, but his
attorneys were not present. The decision
was read to him. by which he is committed
to Jail to await the action by the authorities
at Washington. Commissioner Spencer.
after citing the law relative to such exami-
4 nations says:
A proper complaint was made TO me, under
oath. charging the defendant, Edward Kelly,
with having committed the crime of murder
/ IN British Columbia with other sufficient
/ allegattons). and warrant for his arrest is
sued thereon. and he has been brought before
me ito the end that the evidence OF criminal
| ity may be heard and considered" as men
Toned In section 5,27O; and the proceedings
on this examination and the taking OF testi-
| mony have been conducted as similar pro-
ceedings are conducted In Minnesota. where
the defendant was arrested. These proceed
ings are in no sense as trial of the defend
Ant, but onlT as an inquiry for the purpose
or asceriaining whether he should be brought
| cused.
There are but two propositions to be con-
sldeTed, to-Fit: FIrst-Has an offense been
committedg
Seconds there a probable cause for
charging the defendant with the offense, or
There Is no doubt respecting the first prop
ositlon. Every one who heard the testimony
Is satisfied that murder was committed aud
the iact is not controverted or disputed. Tue
second proposition is the important one:
In Bishop, on criminal procedure. vol. /,
page 23S, third edition, Mr.. Bishop saws:
The issue before the magistrate is not
whether the defendant Is guilty in fact, but
whether there Is probable cause to believe
him guilty, so as to require an investigation
by jury. On the one hand the magistrate
VIII demand no other proof of the corpus de-
licii than may be found In the prisoners con-
fession; on the other hand. / e viii DISCHARGE
hun IL satisfied that no odense mas been COM
mtted. IL has sometimes been supposed, and
even held, that only the witnesses for the
complainant, not the defendants should be
examined; but this hard doctrine is not tho
better one, even In authority. LorG Denman
once ated the better practice thus: In all
cases IN which prisoners charged with felony
have witnesses. and those witnesses are In at
tendance ut the time of the examination be-
fore the mng strate, j should recommend that
the magistrate should hear the evidence OF
such witnesses as the prisoner. on being
asked, wishes TO be examined in his defense.
IL such witnesses merely explain what has
been proved In support OF the charge, and are
believed. they will actually have made out a
defense in behalf OF the accused, and there
would, of course,
BE no NECESSITY
for any further proceedings; but II the wit
nesses so called contradict those OF the pros
ecution in material points, then the case
would be properly sent TO jury TO ascertain
the truth OF the statements of each
And Chief Justice Marshall, while sitting
as committing magistrate in the CASE of
Aaron Burr, upon the question OF whether
he should commit him for trial for the crime
charged against him. used the following Ian
In ffFaaff Of Il
certainly should not require that proof which
would be necessary 10 convict person to be
committed, on a trial In chief; nor should
even require that * Should absolutely con-
vince my own mind OF the guilt of the ac-
cused; but | ought 10 require, and I should
require, that probable cause be shown; and
understand probable cause to be a
case made out by proof, furnishing
good reason to believe that the crime
alleged has been committed bv the person
charged with committing it." In view or what
Is said by Dir, Bishop respecting probable
cause and the remarks of Chief Justice Mar
shall, above quoted. l do not think Il neces-
sary TO make any extended comment upon
the testimony presented on this examination
upon this proposit on that have called the
important one. The testimony of the wit
nesses is very conflicting and contradictory;
there are many very serious MISTAKES or
wilful mis-statements, and il is not for me to
decide 10y whom they were made, or to re-
concile or explain such conflicting testimony
The witnesses for the defense do not explain
what has been proved in support of the
charge, but do contradict those of the prose-
cution upon material points, and case Is
presented similar to that mentioned by Lord
Denman In the above quotation from Mr.
Bishop.
II this had been a final trial and upon the
close OF tho testimony the counsel for the de-
tendant h. asked me To instruct the Jury TO
bring in a verdict of not guilt on the ground
OF the insult cheney OF the ev noe TO war
rant any other verdict, j should nave denied
sue h request, and would have refused TO set
aside verdict OF guilty as unsupported by
the evidenCe. IL motion for that purpose
had been mrde; for the verdict would have
heen found upon the testimony of the w Z
nesses for the prosecution, and such testi-
mony woud be sufficient to support such a
verdict.
II is true that upon the commitment in a
former examination the executive has passed
upon the testimony taken therein and pro-
nounced the same insuffic ent to warrant
such commitment; and am bound, of course
10 be governed by such decision, and dis |
charge the defendant. unless / regard the |
testimony presented on this exam nation as |
10 the truth OF the chsrEe as c!e irer and |
more convincing than the former one.
Without any further comment upon the |
testimony, ana without expressing any opin- |
ion as to the guilt or Innocence of tie ac- /
cused, j simply say that the testimony is /
clearer and more convincing than in the !
former examination. and that, in tSe Ian |
guGse OF section SEQ, above mentioned I /
deem the evidence sufficient To sustain the |
charge under the proper treaty o. conven- |
ton, and that there is probably cause for |
CHARGING the defendant with the oTense.
shall so certify TO tho secretary OF state /
ana transmit n copy OF all tho testimony |
taken herein. as required, for the action of |
the executive or state department thereon.
naas HaFa .Nar, N....