The Portland daily press., 1898-12-21

the government had conclusively proven
that the crime alleged had been COIN
mitted. and that question was practica;i.s
out of sEthe case. The only remain,Inss{ -,
question WAS whether probable cause 10, Ia
been shown sufficiently to hold rms ie 7.
spondent for the grand jury. lt GU SnSs
co ncern the court whether the time ~ III
vening between this hearing and bne y. "a
ting of the grand jury was long or sstes snotu.
The question of what constipules lSs.
probable cause is difficult one to deIsr,
mine. Counsel had not argued IL, a-
that matter rested with the court 20 ue.ss IN s
mine. Courts differ in opinion on snis
question There should be soinetnlnB =
more than suspicion: there must De bs soire soitb
Kind of proof to connect the accused WIZ
the crime alleged. The judge then pro-
ceeded to read decision on this polnv:
Before l proceed further, said Juoeo.
Burbank, want to call the attentlon "
some of the evidence in the Case Blrst,
in regard to the knife. Three omcers.
clothed with more or less authority, u Il
anr at all. under the warrant issued Iroi,l
this court, went to Vermont and tooK
this respondent into custody. am saIls-
| fed beyond a reasonable doubt, thai Ine
| respondent was arrested in Vermont, anu
charged with this crime, though 10 ls
alleged that he was brought here elniply
as witness. No summons OF subpeona
| had been issued. He couldn It have been
as a witt ess, especially handcuffed, Will
out having some sort Of process oeIore
a tribunal in that state.
| have no doubt, therefore, that he was
ar rested before any of the statements 70
| evidence were made by him. Ihe lHco
that a prisoner is under arrest does nob
prevent his answering questions, but tne
Zoe nf the adrniGSfhfIffV or tQ6
prisoners alleged admissions is whether
thev were voluntary. II SO, they were
| made with his full knowledge OF BIS
rights and responsibilities, and full
knowledge of the consequences. 1t the
admissions were made in response to nope
held out to him, or on account OF threats,
th ey were not voluntary.
The evidence In the case shows that
What he did say was said after his arrest.
see nothing to show that the ststements
he made were involuntary. There 1s no
evide noe that any inducement. hope or
th reat was offered. His statement was
not a confession that he committed uhe
CT ime, but he voluntarily admltteo lhas
the knife found in his room was his. II
nothing had been said, that fact would
have been competent for The government
to D ut the knife into the case.
In this hearing | have excluded tes5i-
mony taken at the coroner's inquest. our
law contemplates that every witness snail
be sworn Once put on oath. the witness
is under compulsion to tell the truth. N
accused witness must either keep silent or
tell the truth, even ii 1t convicts him.
The oath made the statements of this re-
spondent Involuntary. Whether they
would be admissible under other circun-
stances is matter that do not pass up
II.
This knife was found in the respond
- "a lyvHf &c ia ~
other question. Testimony has been put
In by the government to show that 1t be-
Ion ged 70 Ivory Boothhy. Mr.. Henderson
testified that he identified it as Boothby's.
Miss Da me was not as positive. Another
witness thought 1T was MIR. Boothby's 8
and still another witness wouldn't =
Identify It,
III was charged with the responsibility
OF determining whether it had been
proven beyond reasonable doubt that
this respondent committed the crime
charged against him, / should unnesitats
iDgly discharge him.
In addition TO the testimony of the
knife, there is other testimony OF proba-
tive force There is the testimony of Mrs.
Leavitt, that this respondent was at her
hu sband' g store. In my Judgment she Is
mistaken in regard to the hat and shoes
he wore. We're that testimony alone in
the case. should have to reject 1t
So far as the tracks are concerned there
is nothing to show that there were picked
toed shoe tracks between the Parcher
house and the body. As the government
attorney has said, If the man who made
those tracks was the murderer. this re-
spondent is not the man. The reason why
the testimony about the tracks has no
probative force is because no trucks were
found on the house side Of The bridge.
1t is not claimed that anybody ident1-
fed this man as the one passing up the
Kicker road. Testimony as to identitca-
tion is incomplete and unsatisfactorv.
There is no doubt that this respondent is
the man who rode to Portland with MI.
Mason.
In connection with the knife, the testi-
mony of John Meserve has much weight.
Mr. Meserve says the respondent asked
about the road leading to the nesting
house with the common in front of IT.,
and when told that Saco could be reached
by that road, he replied that ne had seen
enough of Saco. and had been at that
common the night before and taken the
WroEg road.
In conclusion Judge Burbank said he
thought there was sufficient evidence to
show probable cause, an0 he would bind
the prisoner over to the grand jury OF the
January term.
CreIlin received the decision with calm
ness, though it is said he felt very conn l.
dent that the hearing would end in MS
discharge. He will be taken to the county
;a; tox