The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1897-12-19

nan announced that he had motion to
make that the court instruct the jury
to acquit the defendant. The jury was
sent out of the court room while the
motion was being made and argued.
The motion was as follows:
You are instructed that the court
| deems the evidence produced by the
| state in the action insufficient to war
| rant a conviction of the defendant
Frank Moody. and therefore advise the
| jury to acquit him.
| Mr.. McCiernan reviewed the states
| testimony and argued that there was
| not the slightest evidence to connect
Moody with the trial, and pointed out
| the contradiction of some of the testl-
mony given by different witnesses. Sew
| eral witnesses said the men wore black
| bats, others said one of them wore
light hat. Some witnesses said they
wore long coats and others said they did
not Some said the taller of the two
men was the oldest, and others said he
was the youngest and some said he had
a smooth shaver face and another said
he had a weeks growth of whiskers on
MS race. MIR. McClernan spoke of the
impossibility of any human being to
traverse the distance alleged to have
been covered by Moody and Franey
from the time of the murder until they
reached their room at the Will house
The states testimony was that the muir
der was committed at 1926 o'clock and
that Moody and Franey turned up at
the VIII house at 1920 o'clock. To
make the tour from the scene of the
murder to the Will house they would
have had to go at least Is blocks
County Attorney Stapleton said that
there could be no doubt that the testi-
mony of Mrs. Althoff, proprietress OF the
VIII house, was erroneous. She testi-
ned at the preliminary examination that
u was lO:45 o'clock when Moody and
Franey reached her house. and ii did
not occur to her that her clock was IS
minutes fast until some other woman
tod her of IL, and then she said she
had kept her timepiece fast for 16 years
Mr. Stapleton said the testimony showed
beyond any question of a doubt mat
Moody and Franey had been together on
the night OF the murder from o'clock
until they returned to their room at the
VIII house at 1916 O'clock They were
seen at the scene of the murder only
Few moments before it's commission
ana Franey was positively identified by |
several persons. After the murder the |
two men were seen running away from
the scene and Franey was again pos |
ltively and beyond all question of doubt |
Identified and his companion answered |
In every particular the description of |
Moody. The two men were together |
when they returned to the viii house |
and that is proof that they had not sep |
arated at any time. but were together |
at the time of the murder
Mr.. Baldwin presented the law APP |
phcable to the case and argued that |
a suifciently strong case had been
made against the defendant to warrant |
a conviction and it should go to the |
jury. He said the motion of Mr.. Nc
Clernan was not warranted and the
Jurors were the exclusive judges of the
1acts. The evidence. he said, pointed
directly TO the guilt of the defendant
nj s..4x.
a circumstantial nature. Law writers |
hold that in many instances circum-
stances are stronger evidence than the
testimony OF eye witnesses Mr.. Bald
win referred TO the testimony of Mrs.
AlthoH regarding her clock and that
she regulated her time piece with the
court house clock. the cratic nature of
winch time piece is well known to every
person in Butte. If Mrs Althoff was
or her clock was wrong only
TO the extent of a few minutes all the
Importance attaching to her testimony
by the defense vanishes and the proof
against the defendant is conclusive
hr. Baldwin also reviewed the testl-
nony as II showed the movements of
he defendants on the night of the MUIR
Ter.
They were in the California brewery
u ~ O'Clock, at the same time that the
'lctlm, hroeger, was there. and they
lad an opportunity to observe that he
lad money. They left the saloon at the
anne time that kroeger did Ten or
wenty minutes later they were seen
within two blocks of the scene of the
murder and proceeding in the direction
4 IL. Some minutes later two men |
losely answering the description of
1oody and Franey, were seen standing
L the point where the murder was
ommitted a moment later. and when
he shots were fired the two men dis
ppeared and were seen running west
n Park street and one of the men was
ositively identified as Franey and the
Their perfectly answered the descrip-
on of Moody.
Mr.. McClernan, in closing the argu-
tents. said the court had the right TO
ssume the province of the jury to pass
pom the credibility of the testimony ;
nd giving the defendant the benefit of
he doubt and instruct the jury to ac- !
nit.
An Astonishing Ruling.
Judge Clancy then astonished every
ody by saying that he would sustain /,
r. McClernan's motion. He said the
ate had not made out a case upon
HIGH man could be hanged He re-
ewed part of the testimony and laid !,
irticular stress on the testimony of =
rs. Althoff, from which he concluded :
lat the defendant could not have !,
the murder and returned 10 :,
lie WIN house at the time testified to !
Mrs Althoff. The jury was recalled ~
nd the instructions submitted by MIR.
Coleman was read to them, but the T
'uft added 10 Ii the provision of the
w TO the effect that the jurors were !,
u bound by the advice of the court :
Mr.. baldwin asked the court to con- =
der the case closed and submit other :.
structions and allow the attorneys to p
que the case to the jury, but the court :, =
tefIuled the request The Jury retired |
o'clock and the result Of their de- :,
Deratlons showed that they believed,
many others did that Moody was -
NIFTY. They remained out until 10: so
clock, and then reported that they
,uid not agree 10 accept the courts 4,
iNice and asked for more instructions
The judge repeated what he had given