Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1900-08-09
SUPREME COURT GRANTS CON-
vICTED BURGLAR A NEW
TRIAL.
BASED ON ERROR IN
COURTS INSTRUCTIONS.
Relating to Jury's Right 20 Reject Un-
corroborated .Evidence-Mason
Robbed Road House.

The remittitur in h case of John J..
Mason, convicted OF robbery in the dis
trict court here n sentenced to 20 years
IN the penitentiary, was received by the
clerk of the court today. The decision
OF the lower court is reversed and Mason
granted a new trial on the ground that
one of the Instructions of the court in
the case was not what it should have
been for sticking" purposes. The salient
facts of the remtttitur are as follows:
On the I'd of February, 1899, In the dis
trict court of Silver Bow county, the de-
PENDANT was found guilty of the crime of
robbery and thereafter sentenced to 20
years in the pe%nitentiary. No motion for
a new trial was made, nor does the record
contain any bill of EXCEPTIONS; and what
evidence the record did show has been
stricken out. The appeal is from the judg-
ment on the judgment roll. The appel
liant complains Of the following instruc-
ton, which 1t Is agreed was given by the
court below of It's own motion: 1.-The
court instructs the jury that they are the
sole and exclusive judges Of the evidence
given in this case and the weight of the
evidence and the character and appear
ance of the witnesses giving evidence N
he witness stand; and also may on
slider the interest they have In the event
of the case; and after SO considering and
weighing all such evidence and fully con-
sidering the same may reject all or n
such testimony where 1t Is not supported
or ~corroborated by other worthy and
creditable evidence
Counsel for the state admitted that the
giving of the instruction was manifest
error. but commended that under the
rulings 0f this court, the absence of all
evidence from the record, error in giving
or refusing instructions cannot be con-
sidered an appeal.
1t needs no critical examination to de-
fnof tho AWAY }a kht~ p -
the court in effect tells the jury that no
matter how relevant, competent or per-
tinent the testimony given in defendants
behalf may be; no matter If they believe
every word of it to be true, they are at
liberty to reject such testimony unless it
is supported or c%orroborated by other
competent and credible evidence. This
lis not the aw. The instruction complain
ed of Is clearly erroneous, and the pre-
sumption is that it was prejudicial to the
defendant. It cannot be correct under
any supposed state of facts, and so is
wrong in the absence of all evidence as
1t would be were the evidence before us.
With the record in this case in the condi-
ton stated the question is, can this in
%struction be reviewed?
For the giving of this instruction COM
planned of by the appellant, which does
not state the law and which must be pre-
sumed to have been prejudicial to the de-
endant, the judgment is reversed and
the cause remanded for a new trial.
! Mason is one of two men who are al
legged to nave held up the Reception and
Fountain roadhouse proprietors one
night In December or January a year
ago. His alleged partner went by the
name of Lacey. At the trial, however,
the latter was acquitted. Mason was
suspected of the crime and a search Of
the room in which he was lodging in the
Clarendon house revealed a gold watch
that had been taken from a man at the
! time of the hold-up. At the Reception
house a woman tore the mask from Ma
sons face n at the trial positively
identified him as one of the robbers. A
man named Wilbur Travis, who roomed
the police.