The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-01-30
Graves Granted Stay OF Proceed
ings by tho Colorado su-
preme Court
Grounds That We're Set Forth by
His Attorneys for Such
Ruling.
The Trial Judge Palpably Prsjudiced
and His Feelings Projected Into
the Jury Box.


morning granted supercedeas in tho
Graves case. DR.. Graves will be- released
on bail. Tho writ presented by Graves
lawyers took exceptions to Judge Rising'a
instruction to the jury in the lower court
claiming that the judge erred in instruct
ing the jury. They also took excsp-
tion to the testimony Of several Wit.
nesses whom the defense allowed to-
go out OF their way to testify against the
doctor. The doctor has been notified by
telegraph of his good luck in securing a
stay of proceedings. He conversed cheer
fully concerning the case and gave il a. his
opinion that he would soon be granted
new trial and acquitted. On account Of
the large amount OF business before the SUI
preme court it cannot now be said whom
the Graves case will be reached.
The grounds upon which the supercedeas
Was granted were set forth in q lengthy
brief filed Monday by Wells, Macon g. Fur
man. Or. Graves attorneys, with the SUI
prsms court. The brief is very pointed
document, referring to the Pinkertons and
the warfare and ambuscade OF the saw
age" Judge Rising is directly accused of
covsrtly throwing into the jury box his be-
lief that Graves Was guilty. The first
ground set up is:
There was manifest error in the seventh
instruction given BY the trial court to the
the jury a. follows: ''.The court instructs
you that the law requiring you to be satis-
fed of the defendants guilt beyond rea
sonable doubt in order to warrant a con
viction does not require that you should be
satisfied beyond reasonable doubt Of each
link in the chain of ciroumstances relied
upon to establish hI the entis defsndants
ror then and there duly excepted,
because under this instruction the
Jury were authorized to convict this plain
tiff in error OF murder in the first degree
upon doubtful eviden ce when they we're not
satisfied beyond q reasonable doubt as to
each, any or all Of the alleged links in the
chain of circumstances relied upon to es-
tablish the gailt of plaintiff in error. They
were not required to believe beyond rea-
sonable doubt that any of the facts or cir
cnmstances essential TO conviction. were
true. Under such an instruction as
and deprived Of his life upon
mere chain or bundle Of suspicious.
This instruction ia in perfect harmony with
the course pursued by the trial judge, as
will be shown hereafter, in allowing the
states witnesses to testify as to their suB-
plClOH8 duu Ab W Uu6 OpAMlOA A4u nubp4ClOu
of the deceased Mrs. A. j. Barnaby as to
the source of the bottle containing the
liquid which it is claimed produced her
death. Argument upon this point Is unneo-
essary in view ct the decision rendered by
Judge Helm in the case of Clair VS.. the People
one at bar, of circumstantial evidence
alone. The trial judge in that case in
struoted the jury as follows: THAT the
rule requiring the jury to be satisfied Of the
defendants guilt beyond reasonable
doubt in order to warrant Il conviction does
not require that the jury should be satisfied
beyond reasonable doubt of each link in
the chain of circumstances relied upon to
establish the defendants guilt. 1t is
sufficient if, taking the testimony alto
gethos, the jury is satisfied beyond rea-
sonable doubt that the defendant is gull
ty.' This is precisely the same instruction,
given in almost exactly the same language
as the instruction of which We now COM
plain, and as the case of Clair VS.. the Peo-
pie was reversed by the unanimous opinion
of the supreme court of Colorado upon
this point only, we do not deem it necessary
to oite other authority in support of this
objection.
The alternative is now presented to this
supreme court of revising it's own solemn
adjudication or of reversing the trial
judge in the case at Bar. The language of
the supreme court in CLAIR VS.. The people
is: ut is no answer that other portions
of tho charge and even other parts of the
Same instruction state correctly the law
upon the subject of reasonable doubt.
Where tho charge contains in one part an
important correct legal proposition and in
another an incorrect and conflicting pro-
position upon the same subject, the subject
referred to being material to conviction,
the supreme court will not undertake to de-
termine by which instruction the jury was
governed. 1t is enough for the supreme
court to know that error may have inter
vened. 70 prevent reversal for error in
the charge it must appear that the plaintiff
in error, could not have been prejudiced
thereby"
The brief holds that there was manifest
error in the sixteenth instruction, that the
jury should weigh the letter written by
Graves to Mrs. Barnaby, March ", to Cali
fornin, anu il it appeared to have been to
divert suspicion it should be considered
against the defendant. Plaintiff in error
says there were no facts in evidence to
which an instruction was applicable, be-
cause the only testimony was that of
Graves himself. which was excluded by
this instruction. also:
Because said instruction is a charge upon
tho weight of an isolated fact in the case
and presents only the idea of guilt, eNclud-
ing from the jury any Inference that might
be drawn favorable to the plaintiff i'll error,
it being an adroit but clearly expressed
opinion OF the court that the plaintiff IN
error was guilty, and that the jury should
30 consider him.
The brief elaborates on this point, and
adds:
This was clear usurpetion on the part
of the trial judge of the function
of the jury, and was in violation of the
policy of the law in all of the American
states, where either by constitutional pro-
visions, by statutes or by judicial decisions
it has been attempted, 30 far M possible, to
keep judge out Of the jury box.
A very large number of authorities is
quoted to show that an error WIS COM
mitted in instructing the jury that it was
presumption Of guilt ii tho doctor wrote the
letter to divert susnioioni that trial court
could not instruct OH an isolated point;
that instructions amounting to II oommen-
tary on the evidence are erroneous: thas
suggesting inferences in error: that prese,t-
ing inferences on one side only liz u Rriev-
ous error and really argument. The brief
continues;
Under this instruction counsel for the
plaintiff in error We're practically prohih
tied from arguing that there were no faots
and circumstances established by the owl
dence showing that the letter referred to
was prepared by the plaintiff in error for
tho purpose Of divcrtin9 suspicion from
himself or for the purpose OF making owl
dance To ba uaaI IN snna ha sh0ulA IN