The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-04-17
Judge Clancy Refuses to Give
Skater Another Chance.
CONVICTED OF MURDER


for a new trial was argued yesterday
afternoon by Miles Cavanaugn and
Bernard Noon for Shafer. and c. T..
Wines n e. S. Booth, who conducted
the defendants case at the trial, were
not present, and it Is understood that
they rave practically drawn out of the
case.
Mr.. Cavanaugh. in beginning the ar
gument for the motion. took up the
long list OF errors assigned, the first OF
which was alleged to have been COM
mitted when the court struck out the
testimony Of Police Of1cer John Law
son regarding the reputation of shafer
for peace and quiet in the neighbour
ood In which he lived. The court
ruled that a general reputation was
what a majority Of the people ef .
community said. Lawson said he had
never heard Shafer's reputation dis
cussed. In his instructions To the jury
the Judge subsequently said that the
fact that a persons reputation was
not discussed was the best evidence OF
good character. Mr.. Cavanaugh said
the instruction stated the law correct
ly, but before IL had been given all tes-
timony OF that nature a been strick-
en- out. In striking out the testimony.
the court remarked that the city CT
Butte was not a community; that q
community was the immediate vicinity
or neighborhood in which the defendant
resided, and his reputation was such
as IL was known by his friends Ard
relatives and those Immediately sur
rounding him and associated with him..
and that a witness. in order to testify
as to the defendants reputation. had
to know in what part of the city the
defendant resided. This the witnesses
could not do, although they had known
Shafer personally for years. Mr.. Cava-
naugh said that ruling Of the court was
plainly erroneous, He cad authorities
to show that the entire city Of Butte
constituted a community within the
meaning of the law. Among a number
of other alleged errors of the court, was
the admission of evidence regarding
declarations made by John Hawkins,
the deceased, some time prior to the
killing. to the effect that he was afraid
of Shafer m was looking for a police
man for protection. and that he was
afraid to go home. as he had no gun.
Attorney Bernard Noon followed Mr..
Cavanaugh and took up the alleged
errors in the courts instructions, the
first objection advanced being to the
general instruction defining the crime
of murder in the first degree. I'm which
the court failed to announce that the
killing must be preceded by malice.
and he argued that an unlawful kill
ing without malice afOrethOught was
not murder in the first degree. Another
error alleged was In regard to the in
strYction in describing a deadly weap-
on, Yn which the court assumed tina il
had been proven that an assault had
been committed. On the questions of
provocation and justification, the court
instructed the jury that the defendants
right to act in defense could only be
justified where there had been a series
OF injuries inflicted on him, or where
there was an actual attempt to infict
a personal injury. Mr.. Noon said the
law rave a person the right to act on
appearances. He also argued that the
instruction referred to was i'm direct
conflict with a number of Instructions
given to the effect that the defendant
had the right to act where there vas
a manifest intent or endeavor to infiict
injury upon him. Mr.. Noon also OBJ
jected to the instruction which said
thai a man was not justified in killing
an assailant where the act OF the latter
was not such as to put ar ordinarily
courageous" man in fear of his life,
or where it was evident the assailant
intended nothing more than to have a
flair fight" Mr.. Noo said the law did
not recognize any such thing as a fair
fight and he objected to the use of
those words as well as the words or
dinarily courageous" which shoul
have been ordinarily reasonable" The
court instructed the jury that IL they
found thai the defendant was actu-
ally attacked and was in apparent dan
ger. then they might consider whether,
from the evidence. the deceased was
of a vicious or ferocious nature. Mr..
Noon said that If there was an actual
attack. II made no difference what was
the character Of the deceased. An
-sl-- s--@Nr .asI Nh>
took from the jury the right to deter
mine whether Hawkins or Shafer be-
gan the attack. Another was
because IL imposed on the end
the duty to have Hawkins arrested
when he thhreatened him. which also
conficted with an instruction which
said Shafer had the right to arm him
self for his protection after his life had
been threatened. Mr.. Noon also read
a number of other Instructions which
he claimed were and preju-
dicial to the defendant. He said other
errors were assigned which he did not
think were we'll taken and would there
fore not take them up.
At the conclusion Of Mr.. Moons ar
gument Judge Clancy did not care to
hear any MORE, n Mr.. Connolly was
lot given an opportunity to reply. The
Judge said he was prepared to pass on
the matter and he overruled the mo-
ton TOT a new tfidl. IN regard 10 the
alleged error in admitting the declara-
tions OF Hawkins. made prior to the
killing. the judge said the evidence
showed hat IL was part of the res
gestae and all one transaction. As to
the other matters, he considered the
contentious of the defendants attor-
neys dry and without substance. He
did not agree with them that all of
Butte was a community within the
meaning of the law. He aid there
were people who had lives in this city
for Is years who did not know each
other. and II Butte was a community.
the idea might as reasonably be ex-
tended to the whole state. or to the
United states. The Judge did not con-
slider the authorities quoted as very
good law.
The defendants ATTORNEYS took an
execution to the courts ruling n the
case will now be taken to the supreme
court