The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-03-24
NO MORE GAY TRIALS
He Is Condemned to Hang for the
Murder of James Mackie.
PUT UNDER A DEATH WATCH
The News Stuns Him. as He Had
Expected a New Trial = Petition
to the Governor for Glenn
ency VIII Be Circulated.

hang for the killing or James Mackle.
The supreme court to-day affirmed the
| judgment of the lower court in the or
der denying a new trial Opinion was
| by Associate Justice Hunt and was
| concurred in by Chief Justice Pember-
| ton and Associate Justice Dewitt. 1t
was very voluminous, treating at
| length on the evidence. questions Of
| law and alleged errors. Gay was
nearly stunned by the news. His at
| torneys, Col. w. F. Sanders and Lewis
| Penwell, who were the first to tell him.
tried to cheer him up. but without sue
cess. 1t was a terrible shock to him,
as he firmly believed he would be
| granted a new trial. He was moved up
to the corridor with Biggerstaff and
placed under a death watch.
| Gays lawyers will at once begin
| their efforts to secure a Communication
of sentence. Governor Richards has
never commuted a condemned man,
and it is thought by Gays counsel
that enough pressure may be brought
to bear on him to secure clemency in
Gays case. Petitions will be circulat-
ed in Helena, Butte and Meagher coun-
ty in Gays behalf One of his attor-
neys expects ito leave for Butte in
| will cause to be circulated.
In it's opinion, the supreme court
holds that the omission to give the
penalties for murder in the second de-
| gree and manslaupghter in the instruc-
tions to the jury were not prejudicial
to the defendant. Upon this point IL
is said that where crimes of murder
and manslaughter were ably defined
and where the jury deliberated with a
full knowledge of the ract that the
| penalty for murder in the first degree
| was death, they must have found their
| verdict upon evidence of deliberation.
premeditation and malice aforethought.
The court says that If the penalties for
murder in the second degree and man.
slaughter had been given but that for
murder in the first degree had been
omitted, yet the jury had convicted of
murder in the first degree, the propo-
sition of law would be different. But
here they have found him guilty Of
the degree of murder which is followed
by the death penalty. The dying dec
larations of the man who was killed
are held admissible. The resistance
by Gay at the attempted arrest of
Gross and Gay ait the Gross ranch by
firing at the officers is regarded as
evidence of the deliberation of Gay in
his theat that he would not be arrest
ed, and that there were not men
enough in Meagher county to take him
alive. The killing of RAIDER is regard
ed as evidence also of the deliberation
and intended purposes of Gay and
Gross to resist arrest by killing those
who might attempt to take them into
custody.
The facts in relation to the fight on
the Musselshell are reviewed by the
court. The court says that IT is evil
| dent that Gay was determined to kill
any man whom he first saw or who
first saw him, and that Mackie was a
victim and that Williams would have
been another had Gays aim been cor
rect. At that time Gay. the opinion
says, was liable for arrest for resist
ing an officer in Castle, for resisting
the posse at the Gross ranch, for aid
ing in the killing of RAIDER, for the
stealing of RAIDERS horse after RAIDER
was killed and for resisting the officers
thereafter. The court says that it is
evident Gay saw and knew the officers
a and that, where a party is endeavor-
ing to evade arrest and when ordered
s to submit himself, deliberately aims al
rifle at the officers, the necessity fol
the reading of any warrant or for ad.
IL vising the party by what authority the
arrest is made is dispensed with by the
voluntary act of the party himself
1t is said that the instructions yer.
fully laid down the law of self defens
and justifiable homicide, but that tn
jury. having rejected the theory of sci
defense, were warranted in finding
verdict of murder in the first degree
The court views the question of allege
misconduct on the part of the jury an
finds no error on that ground; nor doe
1t find any error in the newly discover
ed evidence, as contended for by tn
defendants
The court takes up the questions c
conclusive presumptions. which appe
liant raised in the supreme court.
was argued that the new code, whic
makes a presumption from the delibel
ate commission of an unlawful act tn
intent to injure another conclusive,
an ex poste facto law. The court say
that when this statute is analyzed IL
equivalent TO saying that the delibel
ate and malicious shooting at a ma
for the purpose of killing him cor
clusively raises the presumption of ms
licious intent, and that the statute
but the expression of common law geI
orally. The court says that each IA,
from which the conclusion is to I
drawn may be rebutted. and that
defendant may deny the cOmmissio
of the act. or that il was unlawful {
that he did it deliberately or with il
I tent TO injure. These are facts whiC
- may be rebutted. but IL they are not r
butted and are proved beyond a rea
enable doubt. then the law makes
conclusive that such acts We're con
mitted with a malicious intent.
In conclusion. the court says: w
do not deem IL necessary 10 note u
j other alleged errors further than 70 50