The Anaconda standard., 1897-12-20
1T CAUSED A SENSATION
Comment on Clancy's Ruling
Are All Adverse.
CASE OF JUDGE MADE LAW
There Will Probably Be an Appeal to
the Supreme Court, But 1t Will Be
of Doubtful Value-C Change of
Venue for Franey

Judge law is worse than mob law"
said Judge Clancy on Dec. IL. when a
motion for a certificate of probable
cause was argued before him in the
Veno case. He had reference to a de-
cision made by Judge Beatty of the
California supreme court, with which
he did not agree.
1t is such DECISIONS continued
Judge Clancy in his comment on the
decision of the eminent California ju-
rist. that bring the courts into dsre-
pute.''
This timely and appropriate remark
may not have any application To the
Moody case, but il may of interest for
the purpose OF certain comparisons.
The acquittal of Moody caused a SEN
sauon in Butte yesterday that was
little less than that caused by the cold
blooded murder of William Kroeger, for
which crime Moody had been on trial.
ana the comment was all one one side.
Judge Clancy's instruction to acquit the
defendant was based on section 2096 of
the penal code. which says:
IF. at any time after the evidence on
either side is closed, the court deems
1t insufficient to warrant conviction. it
may advise the jury to acquit the de-
fendant. But the jury is not bound by
the advice"
AS argued by Mr.. Baldwin In the
Moody case, the section quoted simply
says the court may" advise. and In no
sense makes it the duty of the court to
take the case out of the hands of the
jury. Mr.. Baldwin said that to do SO
would he TO usurp the powers and
rights of the jury. and would be an un-
constitutional act, as 1t practically de-
prfNed the rights of Il man to a trial by
jury. The code annotations to section
2o96. cites the Thompson case from the
Ninth Montana, wherein the supreme
court of the state held that "a verdict
of guilty rendered in disregard of the
instructions of the court to acquit, is
not null and void
The jury in the Moody caG,. accord
ing 10 the statements by several of the
jurors. returned IA verdict of guilty OF
murder in the second degree Judge
Clancy laughed at the verdict. and said
ii would not do, and sent the jury back
for further deliberations. and after
wards himself wrote cut verdict of
mot guilty" and sent it in to the jury
The jury, however, did not use his form
but wrote out one of their OWL % the
same effect. How decidedly The jury
disagreed with the court as t. the force
of the states evidence against Moody
is indicated by the fact. as some of
them said Saturday night that eigat
of them voted for a verdict of murder
in the first degree, and all finally united
on verdict of murder in the second
degree in the face of the courts advice
to acquit.
Altogether il is doubtful if case has
ever been brought before the courts of
the state presenting the same degree of
peculiarities as the Moody case The
states attorneys viii, of course take an
appeal to the supreme court but there
is some doubt that the supreme court
viii consider 1t. as the states rights To
appeal in criminal cases are very limit
ed. and even If it is entertained there
would be slight satisfaction for the
prosecution, should the lower court be
reversed. as the defendant has been re-
leased
The case of Thomas Franey. Moody's
partner, will come up this morning The
states attorneys We're yesterday dis
cussing the question Of asking for a
change Of venue