, 1891-07-02
A FAIR SHOW.
Charley MilIer's Attorney Thinks
He Hasn't Had 1t.
Error Without End Alleged in the
Lower Court.
A Brief in the Case Filed in the
Supreme Court Yesterday.

The bnef of Charles Miller. plaintiff in
error, against the state of Wyoming, de-
PENDANT 10 error. was filed in the supreme
court Yesterday by L. d. TaGgart, Mil
ler's attorney. It Is a rather voluminous
document.
Among the other things the brief re-
cites: The first twenty assignments of
error IN the petition filed were exceptions
taken to the rulings of the court made
during the trial which closed with the
verdict of guilty of murder in the first
degree on the 18th day of December.
1890. The other assignments OF error are
for the overruhng of motions for a new
trial, in arrest of Judgment, and for sus-
pension of execution of sentence.
The plaintiff in error (Miller) alleges
error on the part of the district court IN
its reiteration of common. law principles
applicable to the common law crime Of
murder, but inGpplicable to the statutory
crimes OF murder N the first and second
degrees.
Execution is taken to the courts in
struction to the jury, that IF without
such provocation as is apparently suffi-
cient to excite irresistible passion a sane
person shoots another" y although
he has no malice or i'll will against the
party shot. yet he is presumed to have
such malice at the moment of the shoot
ing, and if death results from the shoot
ing it will be murder.
Objection is made to the omission OF
the statutory language. which knows no
such crime as murder, but murder in the
first and second degrees. Nothing is de-
liberated which is done ON sudden impulse.
Where homicide is proven the presump-
ton is that it is murder in the second de.
gree unless the state should elevate it to
first degree. The instructions took away
from the Jury consideration OF the ques-
ton of malice. This should be made very
evident in cases of minors. Some states
prohibit the death penalty on victims
under II wears of age. Authorities are
cited to show that none nave been hanged
in this country under l6.
The court stated what was not the diff.
ference between murder in the first and
second degrees, but failed to state what
lods the difference. Miller's attorney CON
tends that moral obliduity and def Iency
are totally different from moral ~depravity.
They allege that the evidence shows he is
deficient in moral seutimen. and not hard.
ened in crime. Many authorities are
quoted on insanity. including this SEN
tence: IF the defendant was unable to
know that re was committing an offense
against the laws of God and nature he is
excnsable.
MANY averments of error and welghty
authorities are cited to show that the court
erred in overruling the motion in arrest Of
-indGmenL-.The court could nntacnuire
jurisdiction by an indictment presented by
a grand jury. the proceedings OF which
are absolutely void" The plaintiff In
error was tried and convicted by a jury
not selected by the laws of the land, but
by the ,heritf The Judge hal no power
to summon a Jury If talesmen after he
had voluntarily discharged the whole
panel. An indictment found by a
grand Jury not legally lmpanncIed is in
valid. The defect in the record OF the
petit jury is fatal.
Quotation is also ma lie from the state
constitution that there will be no abridge-
ment of citizenship because of sex. and
the fact that the jury was composed en-
llrely of male citizens is alleged as
grounds for new trial.