The Helena independent., 1889-05-22
THE BRYS0N CASE.
Jpdoe Blake Overrules the Motion
for a New Trial and Gives
His Reason.
po;nts Raised by Mr.. Ballet, the
Defendants Attorney Not Ae-
cepted by the Judge.
r,.-,r FuIty Competent To serve Though
He May Have Read Newspaper
Accounts.


,.,srnoon. the occasion being the hearing
~ tbe motion for a new trial IN the BrysOn
c.se :. A. Ballet, BrYsOn's attorney,
made strong argument in favor of MS
client. raising points OF law and submitting
the affidavit which was mentioned Jester-
day. Mr. Wallace followed in al able
srgumeut. after which Judge Blake over
rnled the motion iOr new trial The deci-
sion is ia substance as follows:
1 have given this case great deal Of at
tentiOu in keeping with It's character and
uarnituGe. As already stated by me,
nav. carefully examined the testimony,
and am reasonably familiar with all the
noInts which have been raised by counsel
| have considered the case without any
bias or prejudice, and have read The eVi-
dence With the view 70 satisfy myself as 10
whether or not this defendant bad been
properly found guilty by the jury by
whom be was tried.
The grounds upon which this motion are
predicated arr, FIRST, In reference o. the
empaneling OF what are termed pre- Judicial
Jurors. Our statutes make the presiding
Justice the trier OF jurors 10 ascertain
whether or not they have bias or preJl-
ce, and in the exercise OF that prrroga-
live certain limitations have been pre-
srribrd by the statute. IL has been truly
remarked by counsel that our statute i
perhaps nothing more nor less than = Teit-
GRAFTON OF the common law as incorporated
in the statute on the matter OF this preJu-
dice OF iururs. Ia the case of Common
wealth against Webster, 9th Gushing, 2sl
Chief Justice Shaw said ia substance that
the material inquiries contemplated 10y the
statute, as applicable 10 this case, were.
whether the iurOr bad fOrmedtOr expressed
an opinion. or was sensible of any bias OF
prefndice IN regard thereto. The word
prejudice SEEMED TO imply nearly the same
thlng As opinion; a preiudgment of the
5a.rrfrf - D
Will against either party. 1he stat
ute intended to exclude any per-
son who had made up his mind,
OF formed Judgment in advance,
in favor Of either side Yet, the opinion
or fudment must be something more than
vague impression, formed from casual
conversations with others, or from
reading imperfect, abbreviated newspaper
reports. IL must be such an opinion UpOn
the merits Of the question as would be-
likely o. bias or prevent a candid judgment
upon full hearing of the evidence. IT one
had formed what IN some sen-e might BE-
called an opinion, but which yet fell short
Of exciting any bias or prejudice he might
cOnscirntIOusly discharge his duty a
Juror. Now, we have a statute under
which WHEN Juror testfies that he b IS an
OplniOn OF an impression that is formed
from reading newspapers, or from public
rumOr, that then upon iuusiTy had BY The
court, and the Judge being satisfied that he
can render a verdict according To the law
and the evidence. he becomes a competent
Juror. Jurors frequently say thas they
nave an opinion when they do not really
mean what they say, and when Ia Reality
they have none such, and the Judge who
presldes the trial thereupOn proceeds to
satisfy himself rs 10 their competency, 10
determine the question as 10 whether they
have a prejudice or not, and from the EVIL
dence had Llis case l am satisfied that the
Jurors under our statute wure competent
il does not appear that the court ia so
many words asked whether they could
render a verdict according to the law and
the evidence; but when Juror is sworn 10
try the issues involved be Is sworn 10 rem
der a verdict according t. the evidence.
Those jurors who formed their opinions
from reading newspapers really had no
opinions that the court regarded a. sucn;
and as the judge truly remarked, II would
be Ne edless 10 ask them whether IL would
require any evidence 10 remove such I'm
pressiOns so obtained, as II would neces-
sArlly require some testimony to DO so.
That being 81, IL does not show that the
Juror was incompetent under cur statute,
when such juror states that he could
render verdict according TO the evidence
As 10 the cOustltutlOnaiIty OF the statute
under consideration. l will not pass upon
that, except 10 state that have no dOIbt of
its being constitutional, as / have had &C
casiOn 10 investigate the question very
carefully. And even il there was some
question about II, | should not, sitting as a
jndge of this court, declare a statute un-
constitutional which had been in fuicu IA
this territory great many years, and
which had been accepted by the courts
without apparently any question.
notice IN one OF these motions nr no
tees Ot intention 10 move for a new tTal
that one of the grounds alleged is tiiet no
venue had been proven. lnAsmuch as this
case Glll 20 20 the appellate court. | I..~tTt-
10 say that the finding of the body ot Mrs.
LundstrOm in this shaft, described by tne
witnesses. would IN the abseuce OF any
other evidence. afford a presumption Tor he
court 10 decide that the woman WAS kilied
IN that particular spot And the court
would also consider the cIrcumsIauc = un-
der which the body was found. The fact
that her hands had been tied while she Was
Yet alive, the bruises upon her person. and
that she could not have come there of her
own volitiOu, that there must hav, been
some outside agency to place her in the
condition size was when found, afford Suff-
clent grounds for suppOslng that she came
tO her death there, and DIR Morris has tes-
tined that this shaft Is IN Lewis and Clarke
county, Montana territory. la my judg-
ment, then, the venue has been properly
established by the testimony.
Now, in reference TO this newly discOv-
erep testimony, counsel has referred 10 the
theory upon which this case was present
ed 10 the jury. Ii is a we'll known fact
that counsel in addressing jury Will pre-
sent the facts of the case as they view
them, and their deductions therefrom, and
II often happens that counsel will give
wrong reasons, and draw from the evil
dence erroneous conclusions in presenting
the case 20 the jury. In the case of the
Commonwealth against Webster. 70 which
1 have already adverted, IL Is a singular
fact that there the defendant was accused
of having perpetrated the alleged homicide
in four different ways. one with a hammer,
one with knife, one by either pounding
OF beating, and the fourth was BY some
Means or other 10 the grand jurors un-
known. Counsel addressed themselves 20
the jury on those different theories. and
yet when the facts were ultimately known
it trAnspired that the death OF George
PsTkman was not caused in any Of the
ways suggested or dwelt upon by the eoun-
sci IN their arguments 10 the Jury. In like
manner, the mere fact that counsel may
have advanced theories in this case, would
have nothing TO do in determining WHITTIER
or not the party Is guilty. This newly dis
covered evidence, in my judgment, does
not explain at all the views OF the opinion
which / entertain regarding the case.
Dixon testihes as the reasons why he made
an investigation of that shaft, that he saw
the foot prints OF a woman within short
distance OF the mouth of the shaft, that he
thought ths appearance of the shaft indi-
Gated that some person had been recently
down there from the removal of dust. and
that pole which was in the shaft looked
as u II had been recently touched by some
person. These are the reasons which he
gives for having made the Investigation
this case, only in so far as the ultimate TACT
is concerned, to-wit: that he descended
the shaft and discovered the body OF the
deceased; and that these foot prints nay
have been made by some OF those parties
referred to in the dispositions containing
the newly discovered evidence does not al
feet the fact that the body OF MIS- Lund
srrom was found in the shaft In this con
necIion will state that the strongest facts
and the most damaging circumstances
proven in the trial are not at al
affected by this newly discovered
evidence The facts which satisfy me of
the guilt of the defendant are that he was
living with this woman, holding Illicit re-
latiOns with her, had made threats against
her, not only here but in the state from
which they came. had several Quarrels and
MISUNDERSTANDING with her. and was the
last person, so far as the testimony shows,
that was seen with her when she was alive.
and refer now 10 the afternoon of the day |
of her disappearance This woman IN
doubtedly LEFT that house expecting to re-
turn 20 IL, about that there can be no ques- |
tion of doubt She had paid 4 months /
rent in advance, and never hsd commnni- /
Gated 10 any body her intention OF going 1
away. She never did return, and this de /
feLdant told parties who had asked about /