The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-09-09
HIS EFFORT TO GET OUT
Days Fellow Prisoners at Deer
Lodge Raised 500 for Him.
HE'S HALE AND HEARTY
Attorney General Nolan Appears for the
State in the Habeas Corpus Proceed.
ings. Arguing That Day Can't
Profit by the T~echnicality.

William Day. the murderer of Thorn
as Lee at Meaderville. sentenced to so
years in the Deer Lodge penftentiary,
will be in suspense for a few days yet
as to his ultimate fate. The habeas cor
pus proceedings instituted in his be-
half were heard by Judge Knowles yes
terday, but decision was reserved.
n habeas corpus proceedings are
based on the fact that Mr.. Wines, who
was county attorney at the time. failed
to swear to the information charging
Day with murder in the first degree.
This neglect on the part of the county
attorney, 1t is claimed, nullifies the
judgment and sentence. The prisoners
of Deer Lodge took an interest in Days
case. and on learning hat there was a
possibility of his getting out on habeas
corpus proceedings, raised a purse of
500 for Attorney Kirk to press the case.
Day was brought to Butte on Tuesday
and it was generally remarked that
prison life seems to have agreed with
him. At least he looks fatter than
when he left here.
Attorney General Nolan argued the
matter for the state. He denied tina
the prisoner could now take advantage
of a defect when he had made his plea
and gone to trial and had waited until
the trial resulted adversely before maxi
ing any objections. He contended that
it is beyond the province of his court
under the peculiar facts in the case to
accord any relief to the defendant I'M
der habeas corpus proceedings. It's
province is limited exclusively to deter
mining as to whether the district court
of Silver Bow county had jurisdiction
over the crime of murder in the first
. degree. Montana law makes the dis
trict court the court of general criminal
proceeding and of crimes of the magni-
tude of murder i'm the first degree. That
Is the only matter which the present
court can determine. The supreme
court of the state has decided relative
to the balance of the contention and
that is the supreme law of the state.
The defendant has had full opportunity
to present his defense. 1t cannot be
commended that there was any defect i'm
the proceedings which denied him a full
and complete defense. 1t matters not
which one of three propositions are
AIKEN. First, assuming that the SUI
preme court is wrong, there is a way to
remedy it; second. if 1t is right,
then 'the defendant has no stand
ing in court; third, you have
here a judgment of a court of
criminal jurisdiction and the only
inquiry the United States court can
$50 - 80 ~ = NAANIN Hoo u . /
diction of this district court over that
character of offenses.
Attorney Kirk argued that matter
for the prisoner. He said that with all
candor he believed that the supreme
court of the state was wrong. He did
not argue. however. hat the United
States court can review the supreme
court Of the state so far as the inter-
probation of the law is concerned, but
he did contend that this court has the
right to see whether the defendant is
held here contrary to the bill of rights
allowed him by the constitution of the
United States. He did not DENY that
the supreme court is the sole arbiter
of the law of the state. But he claim
the right TO see If the supreme law
of the land has been violated. He did
not denv that the district court has
jurisdiction in this case. But he argu-
ed, the courts derive their jurisdiction
from the law and cannot be greater
than the Law which has made them.
cannot be made valid which in it's
inception was void. The fact that sub
sequent proceedings were regular does
not straighten out previous irregular
proceedings. 1t cannot be presumed
that the defendant has waived his
rights because he did not insist on them
at some former stage of the proceed
If the information will not sup
port a warrant it canno supper a
Judgment and has no place in our Grim
NAL law. A warrant must be support
by oath and there is the same pro-
vision relative to an information. Their
be an oath of affirmation at some
of the proceedings in order to de-
orive a man of his liberty and place
lim on trial for a crime.
AT the conclusion of the argument,
Judge Knowles said he would consider
he matter and render his decision at
o'clock Monday afternoon. Day was
aiken back to Deer Lodge last even
ng and will be returned to Butte on
Nonday