Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1900-07-21

now consent that the victim of such an
error shall be shot TO death2
There are other reasons than the
conduct of the Juror FOsgreen. which
may be offered % this board Tor Invoke
Ing It's merciful interference None are
quite so strong legally and logically but
there are a few which morally are even
stronger.
THE lad was hurried to trial There
was an interval of but nine days bee
tween the homicide and the imp8ncl-
Ing OF a jury a time all too short even
for experienced c0unsels To- prepare the
proper defense Of such case and ale
together too short when 10 Is cOusll-
cred that the public mind was stlll ln q
state OF fever over the homicide
THE counsel appointed boy the court
20 defend him. Mr. Call-for the defend
ant was without means 90 employ
Counsel-Objected 90 the Information
filed. The county attorney desired TO
hle an amended information. and In or
der 90 obtain Mr. Calls consent 20 this.
he agreed 100 open court not 90 call In
the help OF other counsel 90 aid In the
prosecution. and after the jury was im-
paueled and it was TOO late for defend
ant 20 ask for a continuance. and TOO
late for counsel % withdraw his consent
90 the amended Information. the county
attorney called an able lawyer from Og-
den-Mr Allison-into the case The
court refused 90 protect the stipulation
and allowed Mr. Allison 20 serve This
was not reversible error. but it certainly
was most unfair 20 the defendant
Again. IL is by no means clear that
this young man killed Brown or even
hred at him at Oh. DO not need 20 tell
your honors that the law is that 81 q
man Is killed by one OF two men. and
10 Us not morally certain which OF the
two fired the fatal shot. neither can
Doe lawfully convicted, unless they were
co-couspirat0rs In the killing or cocoon
splrators In an unlawful enterprise
which resulted In the killing
In the present case the applicant and
his brother were co-cOuspirators In an
unlawful attempt 90 resist arrest ana
were therefore each guilty legally OF
the death OF Brown, no matter which
OF them fred the fatal shot. The lower
court therefore. did not err. and the
Supreme court did not err In affirming
the ruling Of the lower court. IN refusing
a new trial on the ground that the evil
dence left II I'm doubt whether 10 was
this applicant or his brother that killed
Captain Brown
but while this doubt could not be
considered by the courts IL can be con-
sidyred and ought 90 De- considered by
this board. because while the legal guilt
OF the applicant remains the same I'M
either event his moral guilt Is not go
great IN the one case as in the other
his moral guilt is not great enough 10
demand his death.
sheriff Condor iu his account OF the
ARRAY says that when they first saw
the defendant and his brother they
We're running down hIl They were t1Il .
20 stop. When they disobeyed the
pursuers began shooting Brown fired
first with p pistol Belnap followed
Immediately with a Winchester and the
sheriff fired three shots After the
FIRST two shots had been fired by the
sheriff's posse one OF the fugitives fired
two Shots Brown was killed by one Of
these shots. The sheriff testifes that &c
was the lad who fred both of the shots
and the defendant insists that 10 was
Archie the deceased brother who
turned after being struck and fred
them at his assailau.s. Ii Is unimport-
ant except as fixing the moral guilt. but
the sheriff was probably mistaken, for
DE himself testified on cross-eXamina-
ton that under the hand OF the dead
Archie was found q ack-handled pis-
tol with two cartridges empty While
a white-handled pistol with all the
chambers loaded was found near a
rock. behind which the defendant
crouched before he threw up his hands
and surrendered Certainly whoever
fired one shot fired both. and George j.
Wells who saw the shooting through
a field glass, testines by affidavit filed
in support OF this application, that
Archie Majors fired az least one shot
az Captain Brown.
In any event whatever the rule Of
law may be with respect 20 shooting at
an officer, there was morally no such
wilfgl deliberate and premeditated
killing as is required 20 make out
case of murder In the first degree a
boy of eighteen who, under the in
nuence OF his bTotner, has aided him
in holding up a mllkman whom he
robs OF milk and shoes and triile Of
money. Joins his brother In flight Ine
officers oyertake them as they are run
ming away and while their backs are
toward their pursuers a shot from q
too jealous officer enters the back OF
the elder fugitive who, In his death
agony, turns and shoots down his pur-
suer The younger boy does not FIRE
az all. but II crazed 10y the death OF his
brother and with bullets whizzing past
HIS own head he had turned and fired
at the man who had killed his brother
and was trying to KIN him, il may have
been murder because OF the assailant
being an officer but IL was morally
nothing more than manslaughter II
the pursuers had not been officers, or
being officers were, through a mistake
chasing an innocent man Il would have
been self-defense There was no mala
mems In the lad such as alone can
msie murder out Of such a homicide
The district court could not consider
these facts IN ameli0ration Of sentence
The supreme court could not consider
them, but IL is the privilege and the
duty OF this board Of pard0ns 10 con-
slider them.
Neither the judge who tried the
boy. nor the district attorney who
prosecuted him nor the sheriff who par
ticipated IN the ARRAY. have signed the
applicants petition for Communication Of
sentence 10 could not BE- expected that
they would DO so. The blood OF Captain
Brown and the tears of his widow and
his mother are too fresh iu LoNelder /
county FOR officials seeking recollection
90 lessen their chances by signing a
petition. We have obtained few in
fuCntial names 10 request for
CemenCy but have not circulated q
popular petition. The lad IS without
means 20 pay Tor Canyassors and
IN any event petition signed /
here by those who knew n0th-
ing OF the facts and who. hy sign
Ing, would simply express their merci-
ful disposition would have little weight
with this board Popular opinion can F..
exercise no influence here 10 has been |
the boast and the pride OF the profession |
OF which your hlu0rs 0f the Supreme
court. and you. MT Attorney General /
are members, that 10 has never suffered I
the waves % popular clam0r 90 drive .
O. from its course They might beat /
against the doors OK the court room bur .
within It's portals they were ever I.
hushed
"To your excellency. the Governor. /
without whose voice for mercy an other /
voices will boz unavailing I DO especially /