The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1897-07-27
I" COL Upper Sentenced
to Five Years
A NEW TRIAL is DENIED HIM
GUARDIAN APPOINTED TO PRO
TECT A HUSBAND
Judge Ross Makes Confirmation of
Sa1e-Court Notes and New
Suits Filed

"Colonel" L. Topper, convicted of hav-
ing attempted to send a pistol to kid
Thompson in the county jailwas brought
UP in department. one yesterday for SEN
tence.
The colonel looked comfortable and
at his ease, as he appeared in court with
his counsel Attorney Mills opened the
proceedings by making motion to set
aside the verdict, as follows:
~Comes now the defendant in the
apove-entitled action and moves the
court to vacate and set aside the verdict
Of the jury heretofore rendered and en-
tered herein on the 21st day of July, 1897
and to grant him new trial in the case
on the following grounds, to wit:
81. That the judge misdirected the jury
In matters of law.
2. That the court erred in the decision
Of questions of law arising during the
course of the trial
"3. That the verdict is contrary to law.
~. That the verdict is contrary to the
evidence.
"5. That the verdict is contrary to the
law and the evidence.
&c. Irregularity of the court in absent
ing himself from the court room during
the progress of the above-entitled ac-
ton, which said last ground is based
upon the affidavit of Bernard L. Mills,
filed herein and made part of this mo-
ton"
The afffdavithere alluded to merely re-
cited the fact that Judge Smith had,
during the arguments retired for mo-
ment or two into his chambers. In ar
guing upon the motion Mr.. Mills stated
that under the constitution of the state
no man can be deprived of his liberty
without process of law, and a court with
out a judge presiding not being court,
1t follows that a defendant deprived of
his liberty upder such circumstances is
punished without due process of law.
That was all Mr.. Mills had to say, and
Mr.. Oliver proceeded to dilate upon
rather more important point He called
the attention of the court to the testi
mony introduced during the trial over
his objections, and which were of an
extra-judicial character. These Witness
es testified to conversations in Arizona
IN which the defendant Upper was stat
ed to have participated. These CONVEX
stations, counsel commended, were permit
ted to be detailed before the corpus de-
licti (the actual crime) had been proved
and that the court had then stated that
such procedure was questionable. Quot
ing from the case of the People VS.. 81
monson (107 Cal.) the supreme court
enunciates it as an elementary prin-
ciple that the corpus, deficit must be
proved before extra judicial statements
can be admitted as tending to prove the
crime alleged.
Mr.. Oliver alleged that in the Upper
case it would not have been possible
without the recital of the conversations
referred to to have proved the offense
charged Davenport and Gage, the Ari-
iona witnesses, and Mollie Brown and
Jenkins, all testified to conversations
held anterior to the attempt alleged.
The court ruled that the order of in
Producing proof had been repeatedly
held to be immaterial. The question was
simply. was the corpus deficit proven?
The court thought it had been, and that
the evidence objected to by counsel had
been connected with the offense itself
ut was Tupper's revolver" said Judge
Smith. "it was handed to Jenkins to b.
carried into the jail, and it was carried
in but by the decoys, and without GRIM
inal intent"
With reference to Mr.. Mills objection
that had been leveled al the court itself
Judge Smith thought counsel was draw
ing the matter just a little too fine. He
Gid not think such an objection had any
place in tne motion, but that was d
matter Of taste.
The motion was then denied, and Tup-
per told to stand up for sentence The
accusation Of the information was read
over and the defendant asked if he had
any legal reason to urge why sentence
should not be passed. Colonel Upper
stood quite self-possessed and said he
had not. Without the usual words of
admonition the court then sentenced him
to the maximum term of five years i'm
prisonment at San Quentin.
Counsel gave notice of an appeal, and
that ended what has proved quite sem
sational trial.