The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-12-20
NEW TRIAL FOR SHAFER
Supreme Court Gives the Muir
derer Another Chance.
LOWER COURT REVERSED
The Verdict Was Sustained by the Evil
dence, but Error Was Made In Elk
GLIDING Testimony-Important
Decision Rendered.
Special Dispatch to the standard.

special Dlspalc 10 tH' Sidhoaih'
Helena. Dec. 19.-The supreme court
to-day granted a new trial TO Josiah
Shafer, convicted i'm Butte of murder
in the first degree and sentenced TO
hang. The judgment of the lower court
Is reversed and the cause remanded be-
cause of errors Of law and not because
the verdict was not supported by the
evidence. Chief Justice Pemberton pre-
pared the opinion In the case. The
court inc that the lower court erred
i'm permitting witnesses on the part of
the state TO testify over objection 20
the defendant. as to the bad reputation
OF the latter and the good reputation
of the deceased, at the same time ex-
Guiding testimony as tn the good repu-
tation of Shafer. IF II was proper TO
exclude the evidence of defendants
witnesses under the circumstances dis
closed by the record. for the anne rea-
son the testimony of the states wit
nesses should likewise have been ex-
1 cluded." say the court.
Error was also committed I'm not per-
hitting the defendant. when on the
stand. to tell what kind of a man the
deceased was physically. The court
can find no theory for admitting. as
was done, the evidence of witnesses OF
declarations made by the deceased in
the absence of the defendant as to an
alleged difficulty had with Shafer at the
Columbia Gardens 30 minute prior 10
the homicide. In speaking of the in
str%uctions. the opinion says:
w are called upon to treat the in
structions given by the court to the
jury. The task Is appalling. Fifty-nine
Instructions were given and nearly all
OF them are attacked by innumerable
assignments of error. II is one of the
questions to treat them seriatim. The
attorney general claims that the in
st~ructions cover all the questions OF
law applicable TO the case, and says,
the only objection that ought to be
urged I'm that respect Is hat they are
too numerous We agree with counsel
that the Instructions are too numer-
GUS They are so much so as to be
absolutely confusing II they were free
from defects. Inconsistencies and con-
t~radictions. Counsel for the defendant
especially claim, and uroe with much
earnestness, that instruction No. IL is
fatally erroneous This
gave the lower courts definition of un-
lawful killing, emitting the necessary
malice aforethought.
I'VE him this Is a defective and err
roneous definition of murder In the first
degree coz nues the opinion. land
not in harmony with other Instructions
given by the our defining this crime.
IL is unnecessary TO say whether this
error. standing alone. would be con-
sidered sufficient To authorize a reversal
of the case. Nevertheless. we cannot
but ~disapprove of the instruction. 1t
is a dangerous instruction and so well
calculated to produce damage and pre-
JUDGE, even when considered with the
other instructions. that IL is difficult
to say that IL liz not fatally erro-
neous."
The supreme court also excerpts to
Judge Clancy's instruction that IL was
the duty of the defendant. under the
law. to retreat or use all reasonable
means I'm his power To avert the neces-
sity of killing and r~eiterates the doc
trine laid down on that point i'm the
Rolla murder case.
Al instruction that evoked caustic
comment was one I'm which the Jury was
told that II the deceased meant nothing
more than "a fair hGht' with Shafer,
then the defendant could not plead self
defense.
I'VE are at a loss to determine what
conclusion the jury would arrive ~
when they undertook to decide just
what was meant by a fair fight" says
the court. What kind of n fight would
have been fair between the defendant
and the deceased. the latter having
been, as the evidence discloses. a very
powerful nan and as one witness
says. "a big brute OF a niger much
the superior OF the defendant physi-
cally? Such expressions in Instructions
are ~undignifed and meaningless. or may
mean anything. according to the view a
juryman might take OF the matter"
The court concludes: There Is no
serious contention here that the evil
dence does not support the verdict. The
errors complained of are those of law.
a.
OF such errors these important trials,
costing So much OF time. labor and
taxes. should end in failure so often to
accomplish perfect Justice. But. never
theless, we cannot escape or shirk the
responsibility of securing. as far as We
can, a fair trial to all persons charged
with crime in this jurisdiction, let the
costs n consequences be what they
may. The Judgment and order appealed
from are reversed, and the cause re-
manded for a new trial
Another decision Of equal Importance
also appealed from silver Bow. was pre-.
pared by Justice Hunt in the case OF
Thomas II. Kinds, county treasurer
against Clara NJ. Wilcox. a suit to col.
lect taxes alleged to be due under tn,
Inheritance tax law The question Z,
be decided was whether real estat,
passing TO direct heirs was subject q
the ) per cent. tax. or whether only
personal property over the marke
value OF $500 had to pay the tax
Judge Lindsay held hat real propert,
was exempt and the treasurer appealed
/, The supreme court afirms Judge Lind
say. holding that the law imposes a ia,
!, on all property, real or personal, To col
. lateral heirs, meaning direct heirs, sucl
as father. mother, child. etc. and tina
? they must pay a tax of 5 per cent. o n al
: personal property over the clear marke
= - - q zoo ~ 80. H. NAIa