The Helena independent., 1889-05-22

the fact that there was some strange-lOok-
ing person, actIng In a suspicious manner.
in the vicinity OF this shaft at different
times, or that the footprints were made by
other persons than the deceased. that does
not affect what / consider the strong facts
OF this case True, II Is a case of ciTcum-
stantial evidence, but / am unable TO see
wherein the links that constitute the chain
are IN any way broken or affected BY this
newly discovered evidence.
As 70 the defendants right TO have this
motion passed upon by the trial court /
agree with counsel, that is better that in q
case OF this magnitude, the judge who pre-
sided at the trial should pass upon the mo
tloI Tor new trial. This was a privilege
which the defendant could have enioyed in
this case, II he deemed IL important IL
was matter well known 70 counsel for
Defendant that Judge Mcconnell had re-
signed, aud was soon TO be succeeded on
the beBeb; but sufficient time had inter
yuned between the trial Of this case and
the retirement OF Judge Mcconnell TO have
Afforded ample opportunity 70 prepare
statement and have this motion passed
upon py him, so that there was nothing 10
prevent this defendant from having this
motion heard before the Judge who tried
the case In reference TO this case in Wis
cOnsin, to which counsel for defendant re-
ters, II clearly appears In the first place
tnat there they have a statute governing
motions Tor new trials in civil cases which
requires that the Judge who tried the case
0
motion for a new trial, and the court says
that the same reasons should apply on a
motion made In a criminal cas-. We have
no statute OF that kind here, and as / have
already stated, there was nothing to pre-
vent the defendant from having the Judge
who sat on the case below act on this mo-
/ ton. There is another feature, and that is
| this: IL Is true that the judge who sits Al
! the trial Of the case can judge of the credi-
1 billty OF the witnesses, and form his opinion
l from their appearance and similar cfrcum-
| stances; but In this case no question of that
| kind arises. In the motion for a new trial
there Is no question raised as 10 the credi-
| btllty OF the witnesses, or the nature of
/ their testimony, and therefore one of the
| strongest reasons why the judge who pre-
/ sided at the trial should pass upon the
/ motion for new trial does not
/ exist in this case. The evidence has been
L preserved by the stenOgrapher, which
/ brings about a different state of facts in
/ relation To the preparation of a statement
\ Of the evidence to that where reliance is
/ had TO the minutes OF the court, and when
| the motion for a new trial came before a
/ Judge who had not presided at the trial, il
| would necessarily follow that he was in no
| position TO review the evidence which had
/ been adduced at the trial, unless counsel
/ agreed thereto.
| 50, upon a calm review of all the facts
/ of this case, with all the light that 1 have
/ been able 10 give il, | regretfully come 20
/ the conclusion that this defendant has been
| justly convicted by the jury who sat in his
/ case and that he has had fair and Impair
/ tal trial The motion, therefore, for a
new trial will be Overruled.