Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1899-12-13
Says Judges Powers and Rolapp
are "MaIlciously Mistaken"
STATEMENT OF DEFENSE.


maker that he was Innocent OF the
crime he was charged with.
Under REORGANIZATION he said that
Judge Powers. Judge Itolapp and all the
witnesses, who had testified against him
were falriners.
Smith was stIll being croas-examinci
when the News" report closed. 1t
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 Wcatcrvclt asked the
court 10 excuse the Jury while counsel
Tor the defense presented certain mo.
tons. The request was granted ana
the Jury nlrd out " the court room.
Thcrcupon air. MeHtcrNclt moved thnt
all the testimony relative to the finding
OF the exhibits shown from the Paclhc
within house be excluded, on tho
ground that the prosecution had failed
to connect the defendant with the same
by any evidence, also that all evidence
relative to the Internal machines be
Withdrawn from the jury for the same
reason. The court ovcrruled the mo-
tons and In doing 10 his honor SAID
that whatever View he took OF the mat
ter at this time he thought the evidence
sought to be excluded should be passed
upon by the jury,
Attorney woHtorvclt 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 Norrcll took the same view on
this Ioint na he did on the others and
cUnlcc the motion.
OPENING STATEMENT OF DE-
TENSE.
The jury was then recalled and At
torncy II. :. Truman made the opening
statement for the defense. Mr. Truman
said tho defense would prove that
smith was not ut Eureka at the tim
the offcnsc was alleged to have been
committed, and that he was not In
Eureka nt the time the boxes We're al
fered 10 have been deposited with the
Rio Crnndc Western agent. He further
stated that Il would be proven that
Smith was never ut the Pacific shnft
or within house. Counsel admitted that
| Smith obtained two sticks Of giant
powder at the Diamond mine, and said
1t would be shown that they wer. used
| by Smith In prospecting. lettering to
| the addressed envelope upon the box
sent q. W. Powers. Mr Truman sad
/ the defense would admit that Smith
requested the witness liaslam to write
/ the address for him. a man named
Butler MIR. Truman, said, asked smith
to write II for him, and counsel claimed
that as soon as Hasinm had written the
directions smith delivered the envelope
10 the aforesaid Butler.
| SIR. 1ramnn 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 ofonse 10 him.
| neither had he tnlkcd to Peck at the
| window of the luttrr'a sleeping apart
ment. Regarding the suit OF clothes
! claimed b. the witness Stewart ~ his
| property, Sir, Truman said II would be
shown that the garments were taken
/ by defendant smith FOR the purpose ot
| llquldatinE doit of SO existing be-
! tween smith ard Frank Utterly, The
| latter, Mr.. Truman said, gave the suit
TO smith as he WAS leaving Diamond for
other parts.
TAKING OF TESTIMONY.
After Mr.. Truman had concluded Will
| liam Rose. minor, was called ON be-
hnIf OF the defense, Witness said he
had known Smith since last August.
Was at Payson when defendant was
! nrreHtcd Saw Smith Ut Diamond a day
or two before his arrest.
In answer 10 Mr.. Putnam witness
said he first met Smith In the peniten-
| tinry, Rose claimed he was serving a
sentence for grand larceny
MOTION FOR CONTINUANCE.
No sooner had MIR. Putnam got
through with Rose. when Mr.. Truman
arose and addressing the court, said
| the defense would like the case con-
tinucd for the term. He thereupon
made motion for n continuance upon
the ground OF the absence OF four ma
terlnl witnesses for whom subpoonas
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 AT
| fdaylt from Smith, Mr.. Putnam re-
sisted ,ha motion and said the defense
had been given ample time In which e
produce itH witnesses.
Judge Norroll said he could readily
sec the materially OF the testimony
but" said his honor. were e
grant the motion at this time II would
certainly give the defendant an op.
portunity at the next trial to plead
former jeopardy
While the court regretted the neces'
sity OF ovorrullng the motion. he did
not believe the rights OF the stat,
would be protected were he TO grant
II.
SMITH WAS NOT TIRED.
George Phillips. recalled by the de,
fense. testified that he had know
Smith since the latter part OF July
smith and Biddlecome seemed to be OF
quite friendly terms. Saw Smith OF
the afternoon OF August 25th. II wa
between $3.50 and o'clock. The de,
PENDANT was not excited nor tired
Witness was about 10 go on his SHIFT
that was the reason he recalled thu
time Of day Witness worked from
o'clock I'LL H.
Cross-exnminod by Mr. Putnam
When witness came 10 work, he wen
to the blacksmith shop where he saw
the defendant and Biddlecome, Tn
latter was engaged sharpening SOM
tools. Court hpro took a recess,
This afternoon Emery Ward wa
called by the defense, Witness testl
fed that In 1883 he was guard at tn
penitentiary. II was there he FIRST fav
smith. The defendant was put In tn
cage house by witness and was KEEP
there three or four months: II Nigh
have been Ave months.