Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1898-02-11
KILBURN WINS A POINT
Supreme Court Reyerses Burglary Case Tried
in Ogden,
AND ORDERS A NEW TRIAL BE GIVEN,
Defendant Receives Eighteen Months
His Accused Held to be Bad Man De-
cision In the Murray Damage Suit.

Chief Justice Zane gave an opinion
today. concurred in by Justice Bcrtch
and Justice Miner. In the case OF the
State against William Il. Kilburn. APP
pellant. convicted of burglary, revers-
ing the judgment of the lower court
and remanding the cause for n new
trial.
Kilburn was convicted by q jury in the
Second judicial district last July, of
the crime of burglary. and by Judge
Rolapp sentenced to eighteen months
In the State prison. His specific Of
Tense was the breaking into the gran
airy of farmer named Hobbs and get
ting away with a load of wheat. He
was convicted upon the testimony of
n supposed accomplice named Walter
Foley. who, in substance, testified that
ON the night of December 2lst, 1896, he
and Kilburn committed the offense and
disposed of the wheat, the day follow
ing. at Ogden He further stated that
he kept the matter quiet until May.
1897, and admitted that the agreement
to commit the crime was discussed by
himself and kiburn the day of its
committal. Foley also said he held the
sacks while Kilburn filed them; that
he received the check for the wheat.
cashed 1t and turned the money over
To Kilburn.
The prosecution contended that Foo
ley was not an accomplish, but that he
was a feigned accomplice bent on en-
trapping Kllburn and informing
against him. On DISCRIMINATION 1t
was brought out that Foley had been
guilty of n number of burglaries and
larcenies in the same neighborhood.
Foley was asked to relate the CONVEX
satiOn between him and kilburn on the
2lst Of December, 1896. and his reply
was.
We'll, he said he needed a suit of
clothes-he wanted suit OF clothes for
Christmas. and he had been out to this
valley, and had looked at the granary.
and said he could get n load of wheat
there"
Counsel for the State then asked Fo-
ley. What did he mean?" The am
swer was: well. he meant that he
would go into the granary and steal
load OF wheat"
The last question, Judge Zane holds,
was both Incompetent and inadmissa-
BILE, and says counsel had no right to
ask the question, nor could Foley state
what Kilburn meant.
Other errors of allowing certain testi-
mony to go to the jury, are pointed
out by the court.
The court does not dispute the right
of the State to show Foleys part in the
crime was that OF a detective and that
his intent was not criminal. but holds
he should not have been permitted to
express his belief or suspicion as to Kill
burns guilt. or to have given state
ments against him, made out of his
hearing. and off the witness stand.
Concluding the court says; The
evidence in the record tends to prove
that Foley was a bad man, and that he
was not merely a locker on while the
defendant committed the crime, but
that he aided and encouraged the de-
PENDANT to commit It. A detective may
ferret out crime. but he cannot be JUS
titled in influencing or encouraging
another to commit crime"
The court reverses the judgment and
orders that Kilburn be given a new
trial.