Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1900-03-13

n bound Of official duty is overstepped.
prosecutors should never permit them
selves to forget the obligation imposed
upon them to refrain from pervertlng the
evidence. even unwittingly, to the detri-
ment of the defendant
FURTHER on In the same opinion, the
supreme court says, The record consists
OF more than 600 pages. We have read
II with the greatest degree of care. In
the effort to discover the existence of
some reason which may nave led the
jury to return a verdict against the de-
PENDANT the evidence has been analysed.
Inc 1t has been accorded every fair, and
even liberal. inference against him. Mind
ful OF the rule that the jury ha the OPP
portunity, not enjoyed by this court, Of
seeing the witnesses, of hearing them tes-
thy, and OF observing their bearing upon
the stand; ap~preciating, also. theofact1
that the jury are the judges of the weight.
OF the evidence and of the credibiiAy Of
these witnesses, n that their determf-
nation OF an issue of fact ought not
lightly to be dis~turbed,-our earnest at
tention has been devoted to a painstaking
examination of the testimony. the further
recital of which would serve no useful
purpose. We ave searched the record
IN vain for proof of defendants guilt.
1t Is the deliberate opinion OF this court
nat there was no competent evidence
Whatever upon which to base a convic-
ton. There was not even a scintilla of
evidence having a tendency to induce
reasonable and unprecedented men to be-
lleve that WEIGH aided, abetted, advised,
or encouraged the murder of Brown, or
that he conspired with either the actual
murderer or with any other person to
that end. The verdict was clearly, the
result OF passion and prejudice, doubtless
caused, or at least inflamed, in some de-
gree by the incompetent hearsay declara-
tions testified to by the negro as having
been made to him by Regina Geddes.
The record presents, not a case of mere
insuff1ciency of the evidence to warrant
a conviction, but one Of utter failure of
proof, and therefore the court should
have granted the motion to instruct the
jury to find the defendant not guilty.
There Is a difference between INSULT
cheney of the evidence to justify a YER
dict, and no evidence at all upon which
ia base it. In the one case the court may
advise the jury to acquit the defendant,
which advice the jury is not bound to
follow (Pen. Code, Sec. 2096), whereas, in
the other case it is the duty Of the court
to direct a verdict of not guilty."
MI. Connolly said he did not quote this
opinion for the purpose of casting any
reflection upon the judge who tried
Hurst, or the gentlemen who prosecuted
him, but merely for the purpose of show
ing that the supreme court, in the Welch
case. felt about that case much as a
49, III k"S Nc 1A0tC
felt about the Hurst case.
"The distinction between the two
cases." said Mr.. Connolly, "was that in
the WEIGH case the supreme court held
there was no evidence but that which
was incompetent, and in the Hurst case
they held there was testimony tending
to show Hurst's guilt, and that they
could not pass upon the credibility or
reliability Of the testimony, that the
judge and jury in the lower court had
; lone that. - 1
I'm fact aid Mr.. Connolly, 1T have
only admiration for the special prosecut-
ors who secured this verdict. Their
work must have been well lone to have
; achieved such results from so little. And
! am reminded of the saying of a great
a DR.. Johnson, I believe. who, When
8 sked for his critical opinion upon a book
just then published and which was max
ing a great sensation said, Sir, the fell
low who has written that book has done
very we'll what nobody ought ever to do
at ALL ~
I have not time to quarrel with Mr..
Holmes or anybody else connected with
the prosecution in this case. except as it
becomes necessary to elicit the facts, and
I do not want to violate the confidence
of anybody, but the gentleman, Mr..
Holmes.) who. by the way is a very nice
old gentleman) told me. a year ago, when
I was in Glendive and when I first heard
of the case, that the prosecution had
pTdCIlCdlly uO CdSc dSdluSI I1uTSI, DuC
hat they proposed to put Hurst upon
trial before a jury.
Personal reflections. upon myself, my
administration of my Office of county at
torney of Silver Bow county, or innuen-
does, assailing my motives in this inves-
tigation, I shall not notice. My office of
county attorney has nothing whatever to
do with my action in this case. When
I became county attorney of Silver Row
county I lid not cease to be a man or a
nik30osa 11o~rnd vy{fh oil TIM rnco0rr;I31
ity of citizenship, and it would be crimi-
nal in me, knowing what I do about this
case, not to endeaVor to stay this mans
execution. Besides If my actions are
criticised because l happen to be county
attorney of Silver Bow county, I desire
to say that l do not believe I can better
earn the small salary which I am draw
ing from the state of Montana than by
preventing it from doing a great wrong
which might place an ineffaceable bio
prosecuting attorney I have not made the
success that I should like to have made.
but there is one thing I can say, and that
is that l have never been compelled, nor
cial counsel to assist me in the prosecu-
ton of cases. Neither have I. during
the whole course of my official career,
ever attempted to tamper with a witness
for the state, or to endeavor to get him
to twist his testimony against an unfor-
tunate defendant upon trial. I repeat
that I have not received a dollar, of
compensation in this case. nor shall I.
ever accept any; Furthermore, I have
paid out Of my own pocket my expenses
in the case. I firmly believe in this
mans innocence and at the proper time
I shall give my reasons for that belief.
''In the statement which Mr.. Holmes
has signed, he does TO- what he would
not be allowed to do upon the trial Of
the case. namely, he attacks Hurst's
character in the shadow of the gallows.
Continued on Page ~