The weekly tribune. [volume] (Great Falls, Mont.) 1891-1894, 1894-02-02
NEW TRIAL
Robert English, Now in the P~enitentiary
Will Have Another Trial.

Robert English, Now in the Penitentiary
Will Have Another Trial.
Robert English, convicted at the last
term of the district court on the charge
of grand larceny and sentenced to the
penitentiary for five years, has been
granted a new trial. This case has been
before the courts for several months and
been before a jury three times, the last
one resulting in his conviction. English
is now in the ~penitentiary, but will be
brought back and placed in the county
Jail. The following is a copy of the rec
ord granting the new trial:
State of Montana VS.. Robert English.
The motion for a new trial in the above
entitled case, made upon the minutes of
the court, having been submitted to the
court by counsel, upon briefs, after eX-
animation thereof and due consideration,
1t is ordered, that such motion be and
the same is hereby granted, and it is
hereby ordered and directed thai a new
trial be had Of said cause.
c. Fl. BENTON, Judge.
Dated Jan. IS, 1894.
The following are the grounds taken
by the court for granting the new trial
and are appended to the order:
The defendant has been heretofore
convicted of the offense of grand lar
ccny in the stealing of cattle belonging
to one Carther. A new trial was granted
in said cause. Section 1913, third division,
provides. 1.-THE granting of a new trial
places the parties as il nj trial had been
had. The former verdict cannot be used
or referred to. either in the evidence or
in the argument" In the argument
Of the case before the jury the assistant
counsel for the state said; ut has been
further stated that this man has been
prosecuted three tunes. He has been
prosecuted once and acquitted and once
convicted"
A respectable line of authorities hold
that where the prosecuting attorney
comments to the jury upon matter pro-
hibited by the statute, upon being made
! use of against the defendant, such an
error cannot be cured by any instruction
or direction OF the court to disregard
such comment.
Hatch VS.. State, "a, Am. Rep. Texas,
75l.'
Long VS.. State, 2G. Am. Rep. (Ind.
10
Quinn VS.. State, Il y. f. Ills. II.
and other cases."
Assistant counsel for the state in the
face Of the protest Of counsel for the de-
PENDANT and of the court went entirely
outside the record in several instances
in his remarks to the jury as follows:
1T is true his (d~efendant's) partner in
crime was prosecuted by the county at
torney of this county, who represents
this county, and sent to the penitenti-
ary."
Again on 'cross examination he (Ne-
bell swore hat the mortgage was exc
cuted on the 23d day of March," and the
record shows that no such evidence was
given.
1t is greatly to be regretted that after
| the careful trial OF the case involving a
large amount Of costs, that cOunse will
imperil the interests of the state and
seek to obtain an unfair advantage OF
the defendant by representations to the
jury not warranted by the record. and
will continue to do so against the protest
of the court and counsel. Any man &C
cused of a crime has a right to have his
case fairly represented to the jury and
his liberty shout not be jeopardized by
such statements as are above recited.