Great Falls weekly tribune. [volume] (Great Falls, Mont.) 1894-1???, 1896-12-04
STILL CHARGED WITH MURDER
Edward j. O'Brien in the Same Posi-
ton as Before Judge BentOn's
Order.
A MOOtcd Question Must Be COnsid-
cred by the Court at the
Trial.

IL is %poesible-in fact, probable--that
Edward j. O'Brien will again be placed
on trial on a charge of murder in the
fret degree.
The decision which was rendered
Monday by the supreme court simply
dianliseea the appeal taken by the state
from the order which Judge Benton
made last spring, rema1dlng defendant
to cuetody to await trial on the charge
of manslaughter. The supreme court
holds that the state had no right to ap-
peal from such an order, bur further
holds that the lower court erred in max
ing such order.
The statutes provide that the state
may appeal from five kinds of orders,
but in the list of such orders is not in
cluded an order similar TO that which
Judge Benton made; hence, the state
was not entitled to appeal.
The statutes further provide that
when a defendant enters a plea OF
former acquittal of the offenee charged,
a question of fact is raised and every
question of fact must be determined by
d jury; hence, Judge Benton erred in
taking Judicial notice of the proceedings
on the original trial.
December 81, Judge Benton presiding.
Judge Benton's term will expire j January
3 and he will be succeeded by Hon. j. B.
Leslie. AS the latter was one Of the at
torneys for O'Brien, he will not be per-
mitted to sit at the trial of the case. In
this event an outside Judge, probably
Hon. Dudley DuBose, Judge Of the
Tenth judicial district, will be called in
to preside ut the trial of the case.
In view of the decision of the supreme
court the judge will probably ig-
more Judge Benton's order and O'Brien
will be placed on trial or the charge of
murder in the first degree. The defend
ant will enter two pleas-one OF not
guilty and the other OF former acquittal
OF both degrees OF murder.
Presuming, for the sake OF illustration,
that the jury would conclude that the
plea Of not guilty was not sub~stantiated
! by the evidence, then the jury must de-
= eide whether or not, at the former trial,
the defendant was acquitted Of both de-
grees OF murder. The defence would in.
troduce in evidence the verdict Of guilty
i of m~anslaughter which was rendered al
the former trial,
The jury's finding on the plea o.
former acquittal would then depend up
on the instructions on this point giver
= by the court.
The question of whether or not acquit
tai OF the higher degrees of the offens'
! charged on the first trial is a bar to pros
: ecution on the came charge on q new
Il trial that has been secured through thu
@ efforts of the defense is a mooted quee
ton, as it has never been determined b,
the supreme court of Montana.
The defense will contend that it is
bar and the state will oppose this con
> %tention.
g IL the court, in it's instructions, sus
o tain the defense's contention, O'Brie1
n cannot be convicted Of any crime higher
than manslaughter. If the court decide
to the contrary and the jury should con
vict Of either degree Of murder, an ap
peal to the supreme court will be taken
and that body must then decide thu
Il mooted question OF whether or not th,
former acquittal is a bar to further pros
ecution in such a case.
1t may be that there will be othe
Developments in the case.