The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-04-18
OF THE COURTS.
Convicted Of Murder In the Second
Degree and Refused a New
Trial.
Every Preoaution Was Taken to
Give Him a Fair Trial at
Billings.
A Defendant Falls to Appear In the Cir
cult Court and His $1,000 Il
Forfeited.

In the supreme court yesterday morning
an opinion was delivered BY Chief Justice
Pemberton. Justices Dewitt and HAYWOOD
cononrrino, in this case OF tho stase w.
Samuel Russell. who was convicted OF muf-
der in the second degree at the Ssptemoer
term of the district court In Yellowstone
county. lhe sentence WAS twenty-five
years. A motion for q new trial wal over
ruled, and ( om this the defendant sp-
pealed. TIL, first error assigned was ths
refusal OF tic lower court to grnnt the o
tition OF Russell TO. q change Of venue on
tho ground that tho people in Yellowstone
county were p~rojudioed against him. espso-
tally those living near Billings. The court
offered to excuse nl Of these peorle from
ia , duty. but the defendant objected.
The supreme court holds thatif In criminal
cases. whore a large number Of persons are
examined in the presence of saoh other az,
to their qualifications to sit az jurors. and
q large proportion Of them acknowledge
that they had expressed IN opinion a. to
guilt or innocence Of the man as to
disqualify them. that 1t should be
considered as sufficient reason to prejudice
those who have no opinion. and thus dis
qualify them az jurors. then the court is at
= loss to know how a Jury can ever DO OBJ
tanned in any important criminal case IN
any community, and he does not think that
the position taken by defendant can be
sustained by reason OF law. He holds that
the lower court took every precaution to
assure the defendant a fair jury and q fair
trial, and that the verdict Of the jury find
ing the defendant guilty of murder in the
second degree and leaving the punishment
10 be hxed by the court, when they could
have assigned his punishment to imprison-
ment for life, tends to show that the de-
fendaut and his counse. were mistaken as
to tho prejudice alleged as q ground for
change of venue. and that the court was
justified in its ruling in this regard. I'VE
are unable to see that the court below
Quired of trial courts in such proceedings"
The second allegation. that the court
erred in admitting in evidence the dying
declaration of the deceased, il handle in
the same way. the court holding that such
made the deceased had no idea that no was
about to die. He was mortally wounded
and in a dying condition and his last words
tended to show that he was rational and
appreciated his condition.
To the other charge. that the testimony
uAl CIV SONo S~SsJ s
verdict and judgment of the lower court.
the court says:
'.Ihere is a controversy in the case as to
the shooting and it's fatal results. or as to
the identity of the slayer. The killing ap-
pears to have been unnecessary. There
was no effort on the part of the defendant
TO avoid the killing and no evidence Of
danger to the life of defendant. OF TO his
receiving bodily harm at the handa of the
deceased. At the time of the shooting de-
ceased was unnrmed and a stranger in the
house. The defendant was armed and in
the COMPANY of friends, and it does not
appear that he WAS disinclined to enter into
the difficulty that resulted In the killing.
Taking into considt ration the dying decla-
ration of deceased and all the facts and
circumstance of the case. rs shown by the
record. we are of the opinion tnat the evil
denoe amply s~ustaius the verdict and
judgment of the court below. The jndg-
ment of the court below is affirmed. and it
is ordered thRt the same be carried into Of
feet according to the farms thereof"