Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1899-12-13

when the News" report closed, II
now looks as though the case may be
given TO the jury sometime tomorrow.
JURY EXCLUDED.
Upon the opening Of court this MORN
ing Attorney Westevelt asked the
court TO excuse the Jury while counsel
for the defense presented certain mo-
lions. The request was granted and
the jury fled out Of the court room.
Thcreupon MI Westervelt moved that
all the testimony relative 10 the finding
OF the exhibits shown from the Pacifo
within house be excluded, on the
ground that the prosecution had failed
to connect the defendant with the same
by any evidence; also that all evidence
relative 10 the Internal machines be
Withdrawn from the jury for the same
reason. The court oyerruled the mo-
tons and in doing so his honor said
that whatever view he took OF the mat
ter at this time he thought the evidence
sought 10 be excluded should be passed
upon by the jury.
Attorney Westeryelt then moved that
the jury be instructed TO acqult the de-
PENDANT, upon the ground that the State
had failed TO show that there was ever
any present ability existing In Smith
TO have committed the crime charged.
Judge Norrell took the same view on
this loint as he did on the others and
cenieC the motion.
OPENING STATEMENT OF DE-
TENSE.
The jury was then recalled and At
torney d. $. Truman made the opening
statement for the defense. Mr. Truman
said the defense would prove that
Smith was not at Eureka at the tim.
the offense was alleged TO have been
committed, and that he was not In
Eureka at the time the boxes were al
legged 10 have been deposited With the
Rio Cande Western agent. He further
stated that II would be proven that
Smith was never at the Pacific SHAFT
or within house. Counsel admitted that
Smith obtained two sticks Of giant
powder al the Diamond mine, and said
IL would be shown that they were used
by Smith In prospecting. Referring to
the addressed envelope upon the box
sent o. w. Powers, Mr.. Truman sad
the defense would admit that Smith
requested the witness Haslam TO write
the address for him. A man named
Butler Mr.. Truman, said. asked Smith
to write IL for him, and counsel claimed
that as soon as Haslam had written the
directions Smith delivered the envelope
to the aforesaid Butler.
Mr.. JruInan further stated that the
defense would show that the testimony
OF the witness Peck was entirely UNI
reliable. that Smith never confessed
the commission OF the offense TO him,
neither had he talked TO Peck at the
window OF the latter's sleeping apart
ment Regarding the suit Of clothes
claimed by the witness Stewart as his
property, Mr.. Truman said II would be
shown that the garments were taken
by defendant Smith for the purpose Of
liQuidatlng q debt Of $40 existing be-
tween Smith ard Frank Utterly. The
latter Mr.. Truman said, gave the suit
10 Smith as he was leaving Diamond for
other parts.
TAKING OF TESTIMONY.
After Mr.. Truman had concluded Will
liam Rose, miner, was called on be-
half OF the defense Witness said he
had known Smith since last August
Was at Payson when defendant was
arrested. Saw Smith at Diamond a day
or two before his arrest,
In answer 20 Mr.. Putnam witness
said he first met Smith in the peniten-
tiary. Rose claimed he was serving a
sentence for grand larceny
MOTION FOR CONTINUANCE.
No sooner had Mr.. Putnam got
through with Rose when Mr.. Truman
arose and addressing the court, said
the defense would like the case con-
tinued for the term. He thereupon
made a motion for continuance upon
the ground Of the absence Of four ma
terlal witnesses for whom subpoenas
had been issued, and by whom the de-
Tense expected TO prove a number Of
material facts referred TO by counsel
In his opening statement
The motion was sustained by an af-
fidavit from Smith. Mr.. Putnam re-
sisted the motion and said the defense
had been given ample time In which 70
produce its witnesses.
Judge Norrell said he could readily
see the materially OF the testimony.
but" said his honor. were ! TO
grant the motion at this time It would
certainly give the defendant an OPP
portunity at the next trial 10 plead
former Jeopardy"
While the court regretted the neces.
sity OF overriding the motion, he did
not believe the rights OF the State
would be protected were he 70 grant
It,