The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-02-18
HE'LL SWING FOR 1T.
The Supreme Court Af'irms the Judgment
Given 4 Glow.

| The Supreme Court Anirms the Judgment
/ Given 4 Glow.
/ Special Dispatch to the Standard.
Helena, Feb. 17.-William Biggerstah
must swing for the murder, nearly a
year ago. of Dick Johnson in this city.
| The supreme court to-day affirmed the
| judgment of the lower court and the
order denying a new trial. Judge
Blake is in Virginia City. but on his
return will set the date of carrying out
the death sentence.
| The following cases were decided:
State, respondent, Vs. William Bigger
staff, appellant; from Lewis and Clarke
county. Biggerstaff was convicted of
murder in the first degree Oct. 10, and
on Oct. rs sentenced to be hanged. From
| the judgment and order of the court
| overruling the motion for a new trial,
defendant appealed. Counsel for de-
| PENDANT contended that an error of law
was committed in the closing argument
| by County Attorney Purcell in use of
vituperate language as to the preva-
lence of crime and the neglect of other
juries to do their duty. all of which, 1t
was claimed, was prejudicial to the
| defendant. 1t was further alleged that
the county attorney in his argument
| had admonished the jury to act speed
| lily and adversely to the defendant, and
that If wrong were done a rectification
thereof could be had in the supreme
| court. To this language counsel for
the defendant objected and saved an
exception, but did not request the court
to instruct the jury to disregard the
Objectionable language. Had the court
been requested to so direct the jury
and refused to have done so, the ex-
cetion might have been valid and suffi-
cient to secure a new trial AS ii was.
there was no error committed by the
court. The language Of the county at
torney is considered by the supreme
court to have been highly improper,
but the court says that it is not before
them in such a manner as to authorize
1t to so treat 1t. In concluding the
opinion the court says: while all the
evidence is not in record, we think
there is sufficient cause to show that
the defendant was the wilful and de-
termined aggressor in the difficulty
which resulted fatally to the deceased.
We are satisfied that the evidence is
amply sufficient to support the verdict
of the jury to the effect that the kill
ing in this case was done wilfully, de-
liberately. premeditatedly and with
malice aforethought." Opinion by Chief
Justice Pemberton and concurred in by
Justices Dewitt and Hunt.
Arthur K. Erwin, appellant, VS.
James r. Milne ct al, respondents;
from Silver Bow. This is an action to
foreclose a mortgage against James r.
Milne, with whom are Joined as defend
ants his wife and the Miners Lumber
company. Milne was out of the state
and plaintiff filed an affidavit for pub
lication Of summons. The affidavit set
forth facts as required by section 70,
code Of civil procedure of 1884, A de-
fault was taken against Milne and
Judgment entered. The property was
sold by the sheriff and when the period
of redemption expired the purchaser,
who was the plaintiff in this case, re-
ceived the deed. He found Mrs. Milne
in possession and she refused to sur
render. The plaintiff moved for a writ
of assistance. Upon this motion de-
PENDANT offered in evidence the affidavit
for publication of the summons, and
contended that the affidavit was insult
ficient, as it practically set up only the
ultimate facts recited in the statute,
and did not contain the probative facts
showing that the ultimate facts exist
ed. Upon this ground the district court
denied the writ of assistance. From
this order the appeal was taken by the
plaintiff. The supreme court reverses
the order, and the lower court is in
structed TO grant the writ of assistance.
Opinion by Associate Justice Dewitt.
Hiram l.. Childs. respondent, VS.. Mel
son Ptomey and Henry c. Ptomye. APP
pellants; from Madison county. Childs
sued the defendants for s.. 900 alleged
to be due as commission for effecting a
sale of the Lucas mine and secured a
general verdict. The supreme court re-
verses the judgment and remands the
case! Opinion by Associate Justice
Hunt.
State, ex rel, VS. John Shing VS.. J.
NJ. Lenahan; from Ravalli county. The
writ Of certiorari is dismissed
Eliza Hassen. respondent, VS.. ]. T.
Quigley. appellant; from Lewis and
Clarke county. Judgment was entered
in the district court in favor of the
plaintiff. The case was tried before
Associate Justice Hunt, who was at
that time Judge of the First district
This fact, under the statute, disquali-
fed him from participating in the
hearing and the decision in the supreme
court. Chief Justice Pemberton and
Associate Justice Dewitt could not
agree whether the judgment should be
affirmed or reversed Owing to this fact
IL is ordered that judgment Of the dis
trict court be affirmed without an opin-
ion by the court.