Arizona republican., 1893-12-24
A SERIOUS DEFECT.
TeWksbury to Be Given An
other Chance.
The Record Falls to Show That the
Prisoner Ever Entered a Plea
to the Indictment.

A discovery was made yesterday
morning in the record of proceedings
in the Tewksbury case in this district
which, it is claimed by the defense and
almost conceded by the prosecution.
will result in new trial or in case of
denial of a motion for new trial will
procure a reversal of the finding at
Tucson last Friday. 1t does not appear
from the records that the prisoner ever
entered plea.
The discovery was made by Mr.. G.
Kellum, with Messrs. Fitch & Campbell,
in the course of an examination of the
record for defects. The record shows
that the prisoner was arraigned on De-
cember 5, 1892, and took the statutory
time in which to plead.
Some time in April of the present
year plea in abatement was entered,
was argued on April 20 and was over
ruled. The prisoner was not present in
court at the time of the hearing. On
May the defense brought in an affida-
Wit for a change of venue which was
afterward allowed.
The defense for new trial or rever-
sal of judgment rely on two previous
decisions by the supreme court, in the
case of the territory VS. Blevins and the
territory VS. Brash. The decision in the
latter case was handed down by Judge
Sloan before whom Tewksbury was con-
victed. 1t IS contended by other at
torneys that the analogy between the
present case and those cited ia wanting
in the fact that in those two the records
did not show that the defendants b ad
ever been given an opportunity to plead
and it was held that the simple an
nouncement by the clerk to the jury
that plea of not guilty had been en-
tered did not constitute legal plead.
ing in the absence Of the fact upon the
record.
Judge Cox, of the prosecution, was
seen in the matter yesterday. He said
that he had not examined the record
and did not know if it was defective as
claimed. 1t so, the prisoner would
probably get new trial circumstance
which would only delay the result as
Tewksbury could be convicted before
any jury that might be impaneled.
District ATTORNEY Williams says he
believes that formal plea was entered
by the prisoner here and says he thinks
that he remembers it. Clerk G. HI.
Knapp has no recollection Of it or any
other proceeding which does not ap-
peal on the record, nor could anyone
else be found who remem bered it.
Tewksbury received his conviction
stolidly. He manifested no interest in
the proceedings except during his ex-
coriation by Judge Cox in the final ad
dress to the jury which, by the way, is.
said to have been remarkably strong
and brilliant effort. The fight made by
both sides was superb.
The defense had a seeming advan
tage in the connection of Rhodes with
the case, by which it was sought to de-
stroy Graham's dying testimony, for he
had said that he saw Rhodes and
Tewks bury. The defense was permit
ted to introduce evidence in contra
diction. The prosecution was not al
lowed to rebut this. but it took the
stand that Rhodes was not party TO
the case. That Graham might pos
sibly, but not probably, have erred in
his impression. Still, whether or not,
Rhodes was present, six other wit
nesses testified to having seen Tewks-
bury.
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