The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-12-27
ANACONDA NEWS.
FOUND THEM NOT GUILTY
Mrs. Reilly and e. j. O'Toole
Freed From Adultery Charge.
REARRESTED IN THE COURT
On Another Charge Almost as Serious
as the First Judge Kennedy Makes
a New Ruling in Montana
n Penal Law.
REARRESTEDI IN THE COURT

At the close of a stubbornly fought
trial in the police court yesterday af-
ternoon--a trial which was unique and
initial in the history Of criminal law adj
ministration in Montana, because of a
ruling of the judge respecting a privi-
lege of defendants in adultery cases to
marry after their arraignment, in order
to avoid prosecution-Mrs. William
Reilly and Z. J. O'Toole We're dis
charged on the charge of adultery and
placed in the custody of the sheriff
pending the drawing of a complaint
charging both with the crime of unlaw-
full cohabitation.
The trial lasted two hours and hinged
principally on law technicalities of I'M
usual interest. Mrs. Reilly and O'Toole
We're defended by r. P. O'Brien, while
Deputy County Attorney Casey prose-
cuted for the state, County At
torney Duffy arguing at the
close of the trial. The first
act on the part of the defense was to
move. for dismissal of the defendants.
At least that was the plain purpose Of
the motion, which took the form OF
request that the court be adjourned in
recess to enable the defendants to have
the marriage ceremony pronounced be-
tween them. The ground for this mo-
457 of the penal code of Montana which
provides: THE intermarriage of the
parties subsequent to the commission
of the offense is bar to the prosecu-
rion"
This motion Mr.. O'Brien argued in
sistently. Mr.. Casey opposed with equal
effort. 1t has been the practice in the
criminal courts of this state to grant
such motions as a matter of course,
and consequently it has become the
habit of attorneys defending to use this
motion invariably for the protection of
their clients; that is. in all cases where
the accused parties have failed to avail
themselves of the opportunity afforded
them to intermarry during their incar-
cefation or the term of their release
pending trial Thus, Judge kennedys
action in overruling the motion to adj
1ourn the court was practically a re-
versal of the custom that has obtained
in Montana ever since the making of
the penal section Furnishing the crimes
of adultery and other unlawful cohab-
tation Of the sexes.
Marriage As a Way of Escape
His ruling. however. was so clearly
explained as to create the conviction
that in this case the court was inter-
preting the true spirit of the law rather
than merely the formal letter. The
judge said:
- lily tbellel tlaI L cannot DC
putting the correct construction on the
law If / adjourn this court to permit
this man and this woman to have the
marriage ceremony performed between
them, for such a marriage would be
nothing more nor less than marriage
under duress, which surely the law
does not contemplate nor society coun-
tenance. Marriage is an institution too
holy, too sacred, to be debased into a
vehicle of escape from the displeasure
of the law. And While the law pre-
scribes that the intermarriage of the
parties subsequent to the commission
OF the offense' (of adultery or other
unlawful cohabitation) is a bar to the
prosecution, I do not believe that the
law means that when these parties
protection during the tendency of their
trial. justice shall be Interrupted
trit1ed with-made light of-after they
nave come into court to be tried FOR
their offenSe.
IF the law contemplated such prof
legacy of opportunity, the arraignmenl
of these defendants would be nothing
more than a travesty, rather than a
grave and serious procedure for the
protection of society and good morals
This man has been given plenty of OBJ
nortunity to marry this woman and
thus save himself and her from posi-
BILE punishment. But he has not avail
ed himself of this chance. and he now
comes before this bar for trial and
asks that the court take a recess TO
the end that he and she may go to the
priest and be Joined in matrimony-
why? So that the judgment of this
court may be STAYED off and he and
the woman he has Joined himself TO
under duress may escape the punish
ment they fear! Common sense and |
decency must revolt at such propo-
sition, and common sense and decency
are two primal elements of law.
And then if I were to allow this |
man to go and marry this woman IN |
der such circumstances, what assur- |
ance have I as a judge that he would |
not desert her tomorrow, fly the state |
and leave her, to earn her own way |
or become charge of the community? |
None whatever.
THE motion is overruled. The trial |
will proceed"
He Did Not Marry Them.
Reilly. the divorced husband of Mrs
Reilly, was placed on the stand by the |
prosecution He testified that he had |