The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-02-09

have been necessary, and 1t was rea-
sonable TO suppose that the states tes-
timony would be weaker than 1t was at
this trial and the county would simply
be put to great and useless expense.
Besides he became prejudieed against
the defendant and his case during the
course of the trial and he was afraid
that prejudice might influence him in
considering the evidence and he told the
other jurors that he would not stand in
the way of an acquittal and therefore
changed his vote to see If the others
would follow and they did. Mr. Ander-
son tells q peculiar circumstance rela-
tive TO the matter by which he became
prejudiced. When he was retained as a
juror he did not know what defense
would be made or who Franey's wit
nesses would be, and it was therefore
somewhat of a surprise to him when
they put Mike Creamer on the stand to
prove an afibi. Anderson knew Dreamer
and had no good opinion of him. As
is well remembered, the ownership of a
murderers. was an important question
in the trial. The prosecution sought to
prove that Creamer had such coat
about that time. He denied it ON the
witness stand. Anderson then remem-
bered that two days before the murder
he saw Creamer with just such coat
on and had occasion to take particular
notice of it, as he was asked to assist
policeman To arrest Dreamer, who was
resisting.
Anderson also had a good acquaint-
ance with one of the other witnesses for
the defendant by which his prejudice
was Increased and he had great diff
Guilty in keeping it apart from his con-
sideration of the evidence and he con-
Guided to give way in his opinion to
that of the other jurors. Nearly all th-
jurors were seen later and they agreed
with NIr ,6p IN hn Il
not instructed them otherwise they
would have returned a verdict of guilty
of murder in the. second degree. The
instruction referred to. as submitted by
the state read as follows:
You are instructed that murder is
divided into two degrees-murder in the
first degree and murder in the second
degree and by statute the jury is re-
quired in returning their verdict TO ex-
pressly designate the degree. 1t Is not
sufficient, if the jury should find the de-
PENDANT guilty of murder, TO so say,
they must return the degree of their YER
diet in case of conviction"
To these instructions Judge Clancy
added And in this case 1t is murder in
the first degree on not guilty"
Then followed this rather contradic
tory instruction.:
THE jury is instructed that section
No. 1913 of the penal code of the state of
Montana is as follows:
Every person guilty of murder in
the first degree shall suffer death; and
every person guilty of murder in the
second degree is punishable by impris
onment in the state prison not less than
10 years
Only two forms of verdict, one of
guilty of murder in the first degree and
the other of not guilty. We're submitted
TO the jury. Among attorneys there is a
divided opinion as to the right of the
70 tyix fha vet, tfnf, rnfp
but they all agree that the verdict
should have been. under the facts.
either for murder in the first degree, or
acquittal. and that properly there could
be no middle ground, though legally it
might he otherwise.
Mr.. Baldwin, the special prosecutor,
after he had heard the instruction read,
suggested to Judge Clancy that it was
erroneous and offered to produce author
tiles, but the judge said he had salts
fled himself on the point and would take
the chances.
On the question of the jury's verdict
public sentiment and opinion is also
greatly divided. Many people, who fol-
lowed the case closely, We're satisfied
that Franey and Moody We're the men
who. on the 18th of last May, held up
Paul F. w. Kroeger and his brother
Henry and killed the former when ne
resisted. Others, and they are many,
too. have always had serious doubts.
On the whole, the consensus of opinion
is that it was such case, and the evil
dence was of such a nature. that there
was opportunity for an honest differ
ence among the jury.
While the jury was out yesterday
morning Franey and Moody We're taken
into the sherffs office to be photo
gfaphed for the sheriff's new rogues
gallery. Franey was willing and gave
good sitting, but Moody resisted. and ii
was necessary to use force on him. Then
he distorted his face and stuck out his
tongue, so that it was impossible TO get
good picture of him.
In addition to his stubbornness he
talked ugly and after the unsuccessful
attempt to take his picture he was
taken to the dungeon and locked up
there for punishment When he gets
out another attempt Will be made to
photograph him.
To see is to believe. to see to buy
when won see the great ha in