Daily inter mountain., 1899-01-28
WANTS new TRIAL
Sheppard'S Attorney Files a
Notice.
EVIDENCE NOT SUFFICIENT
To Show That Benson Was Murdered
BY the observation-disclosures of
Law Alleged
EVIDENCE NOT SUFFICIENT

Attorney c. J. Walsh, counsel for
Charles Sheppard. has served notice on
County Attorney j. H. Duffy and Clerk
of the Court E. j. CorcoIan for new
trial. The notice sets forth that the ver-
dict is contrary to the evidence. in this:
That there is no evidence direct or cir
cumstantial in this case to establish the
cause of death of the said John Benson;
that there is no direct or circumstantial
evidence in this case which proves that
the crime charged in the information was
ever committed: that the prosecution in
this case relies entirely upon circumstan-
tial evidence to establish the guilt Of the
defendant, and that the only proof as to
the manner of death of the said Benson
is circumstantial evidence; that the pros
ecution has failed to show any motive
for said crime; that the prosecution has
failed to show malice. express or implied;
that the prosecution has failed to con-
meet the defendant with the cause Of
death of the said John Benson; that the
prosecution has failed to prove by COM
petent evidence that the deceased, John
Benson, did not die from natural causes;
that the prosecution failed to show that
the death Of John Benson was caused by
a wound inflicted upon his person by the
defendant with malice aforethought or
otherwise; that there is no proof in this
case to establish the offense charged in
the Information. as required by Section
35S of the Penal Code of the state of Mon
tana: that there is an entire absence of
evidence direct or crcumstantial, that
the deceased came to his death at the
hands Of the defendant.
on account of errors of law occurring
at the trial and excepted to by the de-
fendant: The court erred in permitting
the witness Powell, over the objection Of
the defendant. to testify to the alleged
confession Of the defendant without first
requiring the state to establish the COM
potency of such testimony, and that the
same was a voluntary confession; that
the admission of the testimony of the
witness Powell before the jury was preju-
dicial to the rights of the defendant and
misconduct upon the part Of the county
attorney in Offering the same, in this
That the county attorney knew and had
it within his knowledge that the said
witness Sheffield has procured the al
legged confession to be made by unlawful
means, and under such circumstances
as to render the same incompetent as evi-
dence, and that at the time said state
ment or confession was made to the said
witness Powell, the same was made under
the influence of the promises made by
the said Sheffield, and that the evidence
of the said Sheffield shows that the same
was made to the said Powell immedia tely
after the same was made to the said
Sheffield, and that the said Sheffield was
then and there present when the same
was made to the said Powell. and that
the permitting of such confessions to go
to the jury created in the minds of the
Jurors such prejudice, Notwithstanding
the order to strike out the same, as to
prevent the defendant from having a
fair and impartial trial; the court erred
in overruling the motion of the defend
ant to instruct the jury to find the de-
fendant not guilty.
Because of new evidence discovered
material to the defendant, and which he
could not, with reasonable diligence
have discovered and produced at the
trial,