The herald., 1897-07-18

the two men. He replied that he did
not care to take the men unless Mills
went along, too. So the line of march
was taken up to a store where the party
sat down. Presently Deputy Sheriff
White and Monaghan came along, ard
White at once served the necessary pa
pers upon the men, the officers attorney
and witnesses then returning to the city.
Both Harris and Jenkins aver that they
were not served with subpoenas by eth
cr the prosecution or the defense, and
what they may testify to upon the wit
ness stand is moot point.
Upon being brought into department
one yesterday, the defense in the trial
of Col. L. Upper announced itself as
ready, and the work of selecting jury
at once began.
JURY EMPANELLED
The work of empane telling jury did
not occupy a very long time consider
ing all the circumstances, although the
defense exercised their privilege of chai-
lenge very freely. John F. Powell aud
F. Gates were excused for the reason
that they had sat in the kid" Thomp-
son trial. The defense put questions 10
try and winnow out all those jurors who
had affiliations or friendly feelings for
any of the law officers or the Southern
Pacific railroad. The detectives of this
corporation have lent their aid in this
case with an eagerness second only to
that with which they pursued the noted
kid" himself. BY 1870 the panel was
completed and the following gentlemen
had been sworn as jurors to try the
cause:
c. E. Patterson, Allen J. Hubbard,
William H. Rorick, c. E. j. White, Ben
jamin S. Eaton, Arthur B. Clark, Evan
E. Owens, Theodore H. Klages. John
villinger. c. l. Dunsmoor, Frederick
Maskew and Levi Ullery.
Attorney Oliver of counsel for the de-
Tense asked the court that the rule be
applied and all witnesses be excluded
from the courtroom.
LINE OF PROSECUTION
The prosecution then opened it's case
in dramatic rather than strictly legal
form. AS Mr.. McComas explained tc
the court, he chose rather to present the
case in it's chron Illogical order thar
prove the corpus delicti-the actual COM
mission Of the crime-and then connect
it with any collateral evidence tending to
show the plan and scope of the crime
itself. The law allows some latitude in
this direction, and the court has als9
discretionary power, there being also
two advantages attending the chrome
logical order of presentation. There is
always a strong probability of the cas-
getting beautifully tangled up. All ev-
idence is admitted Professionally only
and failing to be connected with the
crime has no business in the case and
will be ordered stricken out on motion
by the defense. But in piling up ali
kinds Of testimony, both relevant and
irrelevant, the minds of the jury are
influenced and even if the defense is
smart enough to segregate the pertinent
from the impertinent testimony, there is
no power that can blot out from the
iury's mind what has been implanted
there. Then, in the second place, this
plan adms of dramatic treatment, and
works up to a grand climax. OF course
in this trial, in the event of the charges
preferred against the law officers OF
Stacking up a job" against the defend
ant being shown, it is possible that the
anti-climax will more than offset the
striking effect produced by the prosecu-
ton.
Yesterday Colonel Upper as shown by