Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1900-10-20

in and for the County Of Silver Bcw, be-
fore Hon. William Clancy Judge; that
John Il. Baldwin. Esq, is and has been
associate prosecuting counsel in sad
cause; that the said action came on for
trial on the 9th day CT December, 1897,
and after adjournmeEts from LAY to day,
in order to secure a jury, and after the
Introduction of the ts:l.rrony on the part
of the state, and at the Close thereof, and
on the 18th day es December, 1897. coun-
sci for defendant moved l.1 court to in
struut the jury to aicquit the defendant,
for the reason that the state had failed
to make out a case sufficient to go to
the. jury; troat the court sustained said
motion ard instructed acf1 advised the
jury to acquit the defendant, Frank
Moody, to which instruction counsel for
the state then and there objected. and
requested that the court proceed. with
the trial, which objection and request
were both overruled by the court, to
which ruling the counse for the state
duly excepted; thereupcn, and prior to
the giving of such instruction, counsel
for the state requested the court. to ae-
quire ounse for the defendant to an
nounce as to whether they closed their
case OF" not, which request was by the
court refused, to which ruling counsel
for the state excepted; that tnereuron
the counEcel for the state moved the
court to give other instructions upo1 re-
quest of counsel for the state, which mo-
ton was BY the count oTer+rulsd, and the
court deJinll to give any other or fur-
'ther instructions; that thereupon counse
for the state moved the court to permit
counsel for the respective parties to ar
que the case to- the jury, which mct.on
was overru!ed and denied, to which
counsel for the state excepted; that
tthereuroon counsel for the state moved
the .cour to submit to the jury blank
forms of verdict other than the verdict
of not guilty which motion the coura
overrUleI and the counsel for the=stette
duly eye epted; thereupon the court rave
only one form of verdict, which form eff
verdict was drawn and submitted by
counsel for defendant, and which verdict
was to the effect that the defendant was
not guilty of tine crime charged in the
in Information, which verdict alone was
+ given, to the jury by the court, with the
instruction heretofore mentioned; that
the jury retired, and after being out
several, hours returned into court for
further instructions; that the court
thereupon refused to give further i'm
Sll U StdClIiS llId l1lc jury NWOu[u
have to find a verdict upon the inytruc-
tton already given which instruction
was simply to the effect that the court
advised the jury to acquit, because OF
the insuf1iciency of the evidence, but
that the jury was not compelled % abido
by this advice, and which latter cart of
the instruction was inserted by the court
upon he earnest contention and insfs-
lance of counse for the state. That the
jury ~thereupon once more retired, and
after some deaiberation returned into
court With the verdict as presented to
them, which verdict was modified and
corrected by the jury by striking out the
word mot before the word guilty and
inserting after the wond guilty the
words sin the second degree That the
court, upon reading the verdict, laughed
ALOUD in court, and told the jury
that ssthat would not do at ALL and
again i~nstrudtad them to retire, handing
to the jury the form Of verdict which
the judge of said court then and there
prepared in his own handwriting, and
wAlich. AFTER the TITLE of the court and
cause, read as follows: We, the, jury,
find the defendant, Frank Moody, not
guilty That the jury thereupon retired,
and afte r-s some. further elaboration re-
turned into court with a verdict in ac-
%cordance with the Instructions of the
court, which said verdict was prepared
in due form. by the jury, hey, however,
refusing to sign the. verdict in the hand
writing of the court above quoted, but
returning the samewiththe other papers,
unsigned. That the court, at the time
the jury brought in said verdict elf MUIR
der in the second degree, refused to re-
ceive the same or to alficw the clerk to
file Or read it to the jury: that thereupon,
and after the rendition Of the verdict elf
the jury %acquitting the defendant under
stress and by the coercion of the court,
the court discharged the said jury. to-
gether with the defendant, Frank Moody.
That the evidence ON the part of the
state on the trial of said cause was of
such a character as to take the case en-
tirely out of the discretion and beyond
the power of the court to direct the jury
as aforesaid, and likewise was of such a
character as justified the jury, under
their oath, in returning into court, con-
trary to the advice of the court, with a
verdict of murder in the second degree.
That affiant is informed and verify be-
lieves that Hon. William Clancy, judge
as aforesaid, made repeated declarations
to third parties, prior to the trial of said
cause. to the effect that the state had no
case against the said defendant, Frank
Moody, and could not and would not con-
Wet him, and declarations of a like tenor
showing strong bias and prejudice in ia
vor of the defendant, which said knowl-
edge has come to affiant since the close
of said case. That the rulings. remarks
and conduct Of the court during the said
trial We're of a character strongly to bias
and prejudice, if possible the jury in said
cause against the Nate.
That affiant, as the county
attorney of Silver Bow county. is desir-
Gus of perfecting the appeal in said ac-
tion. not only for the purpose of seeking
to secure justice OF behalf of the state
in the present case, but for the better a
ministration of justice in Silver Bow
a,,pfr lo~a1 49,