The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1888-02-19
THE CALTON CASE.
The Decision of the Lower
Court Affirmed,
BUT HENDERSON DISSENTS
Suspended-The Full Text
of the Opinion.

Below will be found the opinion de-
livered yesterday in the case of Andy
Cation. Judge Henderson dissented on
the question of Mr.. Dickson, who was
employed to assist the prosecution,
making the closing argument to the
jury. A writ of error was applied for
| and sentence deferred:
At the September ERIN of the District
Court of The Second Judicial District
| the appellant was found guilty by q
jury of the crime of murder IN the first
degree. A motion for new trial hav-
| ing been submitted and overruled and
the defendant, as was his legal right,
| having elected shooting as the mode of
punishment, the Court sentenced him
to be shot on the 26th day of November,
1887. From that judgment he has ap-
pealed to this Court.
The first ground of reversal relied
upon by the defendant. in the order we
| will consider the errors assign ed, is that
! the evidence was insufficient to author
\ ize the verdict.
IT APPEARS FROM THE EVIDENCE
given on the trial that the deceased,
Michael Cullen, and the appellant. An
drew Cation, and one Jerry liberty
were acquaintance and were residents
of Star Mining District. in the Territory
of Utah; that about 10 o'clock of the
morning OF July IA, 1887, these men met
| few miles away in the town of Mil
| ford. the two last named having gone
there together. liberty testified to this
| effect: When they alighted, Michael
Cullen came up and they went into q
saloon and drank with him; that during
| the day they drank together nve or six
times, once or twice they had beer, the
other times whisky. 1t appears that
they started home ABOUT o'clock in the
evening Of the same day, Gallon and
| Cullen sitting on the wagon seat and
liberty lying on some ore sacks behind
| them; that Gallon was driving and Cui-
| len sitting to his left. liberty testified
further; soon after they had started,
| they all took q drink out of q bottle,
| and after they had crossed the railroad,
| Cations whiplash dropped off and he
| (witness) left the bottle on the sacks
and jumped out to get the lash: while
he was tying it on, Callen asked for
drink, and witness told him he could
get it if he would turn around; Cullen
| did so, but witness did not see whether
they drank or not. He himself was
busy with the whip. and when he
looked up, he said: You are fine fell
lows to drink without offering me any,"
Cation ansWere /. mike has it," and
! said to Cullen, Give Jerry a drink; it is
his whisky" Cullen had the bottle un-
der his arm, and Gallon reached over
and took hold OF the neck of it and held
on, and IN the struggle that ensued
some of the whisky was spilled, and
witness, seeing that Cullen was not
willing to give it up, said: Damn the
whisky, [ do not want it," and then
| said. Drive on" walking ahead a
few steps, thinking they would follow;
Cation got the bottle and held it up
saying, Come back, here it is, have
it; witness then went back and got it
and put it in his side POCKET and again
said: Drive on, will walk, you may
not get any more on the way" After
| taking few steps he looked around
and Cation rose straight up in the
| wagon, and the two men had their
hands on each others necks. He then
ran back and put his foot on the hub
| of the front near wheel to get up and
separate them, and got in behind the
seat. Gallon was then leaning over
the dashboard, Cullen was in his seat,
and did not rise from it so far as wit.
ness saw. Witness then said: What
are you quarreling about. two friends
quarreling for nothing you ought to
be ashamed of yourselves" Witness
then tried to coax them to let go and
finally said to them that he wonld put
them oat if they did not. He tried for
a couple of minutes to separate them.
CULLEN had HIS HAND UP
and said: "You will choke, will you,
you s-n of b-h," and going to strike
Cation. Witness ran his arm between
them and saved him from the
balance" Cation then said: Lets
quit" and they both let go. Cullen
was then in the seat and had not gotten
out of it. Gallon then picked up
bundle and jumped out of the wagon,
alighting upon his feet. The team
started and witness jumped from
the wheel and after little time,
with difficulty, got hold of the
bride of the near horse, (his hands be-
ing crippled). He then heard Cation
say. "You will abuse me-" or you will
choke, you s-n of b-h," and turning
6IOUuQ, uO ohW OdltOu Jake Ills DlSLOI
out of the bundle he carried. Cation
said after he got it out: 81 don't give
damn if you are Matt. Cullen's
brother; you cannot abuse me-" Cullen
was sitting in the seat, and it was not a
half second after he saw the pistol until
the first shot was fired. Cation kept on
firing. Witness halloed: Il say, for
Christ's sake, quit that" Cullen an
swered: ''Oh, he is dead; the first shot
killed him. end I might as we'll give
him the rest" Witness said: mo, he
is not dead" and he kent on firing, and
witness kept saying: "Quit that. he is
not dead Afterwards when they
were coming down 20 Milford, witness
said: The second or third shot missed
fire." Cation then said it was the sec
oud.
AFTER THE SHOOTING,
witness said: "Well, we must go back
to Milford" Cation answered: Yes
The witness had dropped his hat when
he caught the horses, and Cation