The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1894-07-26

~ u assuming 20 81 Ire cD4Eb - NASN~s
ia the foregoing conclusion. A. the de-
fertaSi & val gesf bis right 70 obiecs By ar
pezrsBg and going to trliai and raising no
object on until sitter the serdicg aud after
iadgrnenf.of the court on his motion for a
rev txiaI7 Green wood vs. stale, Ind u.
u. f. 553: schlesinger We. state. Ind. ID
" r ~. Bailey vs.. state: Sulirr W. state,
Ind 4, =. E..p- So There a. some con-
fusion aIa LSznApS conflict IN the carrier
casad. bat the later eases. supported as
they ave By ali the well considered eases
IN oIfT reports, must be regarded as hrTniy
settling the rule thst where n Judge as
eumes 20 act under legal authority and
there IL color Of authority his sets viii not
BE void, aad II tire party goes TO trlai
voluntarily without objeErIng. an objection
afte- conviction will be TOO Late 20 be OF
seqsG This is 81 harmony with the crest
weight Of authority elsewhere. lCfty 4.
Birfs 81 o. Mo, Bal; Clark Va Common
wealth, - Pa 81. i2s; Com. W. Hawkes..
l23 Map. SIS: Com. vs.. Taber. III 253 /;
sheehan's case. -. Map. as; stzte vs..
1Ssfcffe, Mort 4 Mob. 81; state IS. Alliifg,
Il Quo, IL. and Others. II results
tom this principle Inat failure OF
defendant To objest before convic-
ton excludes him from questioning
the regularity of the proceedings. The
rule is ia isself Just aud sanitary in its OPP
eZation+ An accused who voluntarily en-
ters.oa his trial without obJecting to the
regularity Of the order appointing the
term at which he il tried and takes chances
Ola TRIAL, ought not. after conviction. TO
be permitted - object that the term was
rot regularly held. since such proceeding
would enable a teton offentpnss 20 defeat
justice by securing delay. and would entail
on the coarts and public an expense and
Inconvenience that one accused OF crime
7 has no9righ1 20 demand that they shall be
compelled 20 bear
q Judge Moore cited many more cases in
support OF his position and said:
From the foregoing authorities the
court is constrained to hold:
"FiFst--Tnat tile act of 1888 is directory
and the judge had authority 10 act.
"second-That the defendants objee-
ton comes TOO Late at this time rs 10 the
authority of the judge
.SThird-fhat the trial and all the judg-
meBts and orders aud directions therein
were the acts of q de facto judge and are
3 valid as such. and only reversible for error,
e if any may have been committed, to the
prejudice 81 the defendant.
CfHherefore the motion IN arrest of jGdg-
menti is denied
Holmes attorney, Melvin @. Winstock,
next sstonished Judge Moore by reading
an affidavit for writ of prohibition to the
effect thar he as counsel had advised his
client Ehat Judge J. H. Moore is without
Jurisdiction to try and determine the case
that Holmes has legal remedy in q writ
of prohibition against Judge Moore from
the supreme court commanding Judge
Moore from proceeding 10 sentence in the
cause. and that he. the counsel, has pre-
pared the necessary papers TO submit the
question TO the supreme court
Mr.. Winstock pleaded earnestly for mis-
motion on the same grounds as those on
which he based his motion for arrest of
judgment.
Prosecuting Attorney Miller raised no
great objection to the motion. though he
thought the defendants remedy lay in q
writ Of error.
Q Mr. Winstock did not want to adop (
that mode of procedure. but wanted his
writ of prohibition, not having records
enough for an appeal case and feeling sure
of bis ground on the other proposition.
Judge Moore seriously questioned the
motive of the attorney in making his mo-
ton. which he termed as experimenting
with the courts. liz was a little embar-
RAISING To have ones authority called in
question. and perhaps it was a matter
IL
but he did not propose that il should be a
Medium for the attorney to hang up the
case on, and he did not pronose that the
case should drag for another five months.
Mr.. Winstock eontended that he could
not present his case under writ of error
aad thought the court should not stand
in the way in matter that meant life and
death TO the defendant.
Judge Moore repeated what he had sew
eral times before said. that the trial of this
case had been largely experimental; every
phase Of il showed IL: IL was fight for
delay; this matter could just as well, and
properly so, be- presented TO the supreme
|. court on appeal; he did not believe in
dragging IL along and continuing 10 i'm a
state of uncertainty; it was AN injustice 20
tiie public, that had a right 20 look for a
strict enforcement of the laws. The de-
PENDANT had had his rights protected at
every stage of the case, but this motion
for writ of prohibition was simply an
invitation for the court TO become a party
defendant TO the writ. and that he was OF
inclined 10 favor. II the defendant had
been reasonable, his application could have
been made four months ago ana deter
mined by the supreme court long ere this.
tut delay had been practiced, and now IL
was the intention of this defendant 20
briag public officer back and forth
at great expense 10 the state in order
80 pass on every question that would
surely he raised by the defend.
sst at every stage OF tbs ease.
There was a ilmit To IL. and that lnni,
bad been reached. The man was con.
victod, the case vas hung up Tor four
months on q motion for a new trial, aud
now new proposition was sprung tia,
would naturally entail another long DELAY
and expense; it was continuation of tie
series Of experiments thar had been prae.
ticed on the oonrt, and he would therefore
refuse 10 entertain the writ of prohibition.
1t was always a painful duty for him "a
sentence rnan TO the extreme penalty OF
the Law, but mis- duty VAS Imperative. lie
then called Holmes - the bar. The
darkey. iirst emptying his mouth of 10.
bAcce juice. walked or ambled along. from
the rear Of the attorneys part Of thu court
room and stood nonchalantly looking Al
the Judge. said the Judge:
"Whiam Holmes. you have been
charged with the commission OF a crime.
that of murder IN the urst degree. You
have hat a trial on that charge upon a
plea Of not guilty. Your trial has been
fairly conducted; you have been xealously
defended by voar attorney and iury IA.
fsund yea guilty. Is charged. Have YOU
anything 20 say Why the sentence Of death
should nog he passed on you9'
Holmes remained silent. olaukly staring
~ ihe judge,
If yoar honor please" spoke up Mr..
Winstoek. who started up IA the rear OF
the prisoner.