The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1901-11-06

Shafer and G. r. Shadwell. Shafer killed
a man named John Hawkins, and Shad- !
we'll took the life of a man named Martin |
O'ConnOr.
Shafer and Shadwell have been in inn
prisonment for years. awaiting the final
disposition of their cases. The former
slew his man in July, 1897. over four
years ago, ard it will be four years since
Shadwell committed the homicide that
threw him into prison when January II
comes around again.
Shafer has been in the county Jail ever
since the Staying Of Hawkins, and Shad-
we'll has been either there or in the state
prison, where hests at. present
In the Ropes Shadow.
Both men have been in .the-fhadow of
the rope. Shafer was twice sentenced to
be hanged, and Shadwell once condemned
to death and once. the latter time, sem
fenced to life imprisonment.
Lately both men were granted new
trials by the supreme court. The re-
mitters from the supreme court We're
received by Court Clerk Roberts Of the
district court today and placed on file
in his office The next move now is to
place the cases on Judge McClernan's
trial calendar.
Will Be Retired Soon.
It is expected that this will be done
very soon. probably as soon as new
panel of trial jurors is drawn and other
criminal cases awaiting trial in Judge
McClernan's court are set. This Will be
done probably Monday.
$tn 1ttnrnNV'S
office and the counsel for Shafer and
shadwen are both prepared to take up
the trials at once. shafer is at hand
in the county Jail for the trial. and Shad-
we'll will be brought up from the state
prison.
| Many of the witnesses in both cases are
| dead. This will be to the advantage of
the defendants, but to the disadvantage
of the state, if the rule set up at Shad-
wells last trial is adhered to.
This rule allows the defendant to use
testimony given at a previous trial and
preserved in the records, but denies the
state that right. Beside the death of
some Of the witnesses, others have left
the state.
Why Judgments Were Reversed.
The Shadwell case was reversed for the
| reason that the trial court gave an err
roneous instruction. Also for the reason
that two of it's instructions conf1icted.
| The instruction which was erroneous
was as follows:
THE court instructs the jury that no
| threats or menaces made by the deceased
O'Connor, against the defendant, Shad-
we'll, can avail the defendant, Shadwell,
unless he at the time of the Killing was
actually assailed or had sufficient reason
to convince any reasonable person that he
was in danger Of mourning great bodily
injury, or of losing his life at the hands
of the deceased. y"
There was evidence at the trial, the
opinion Of the supreme court says, show
ing that O'Connor made threats against
Shadwell the night before Shadwell
killed him. The instruction of the trial
| court directed the jury to disregard these
threats in forming its verdict.
The supreme court takes the position
that the law authorized the jury to con-
slider the probable effect upon the de-
| PENDANT of the threats.
A Second instruction.
There was a second instruction of the
trial court, which conflicted with the
erroneous one here described
The opinion of the upper court calls
the attention of the district court to an
other error which was not urged by the
defendant, and advises that in the COM
ing trial it be cured or avoided.
At the last trial the trial court did not
definitely instruct the jury as to man.
slaughter, combining itself to the two
degrees of murder The upper court says
that manslaughter is not a degree OF
murder, and that the jury should be in
CT 70 IL in detail,
Several other errors not raised are
also pointed out, and a method of avoid
ing them indicated.
Shafer Case Errors.
In the Shafer case the court upheld the
state in the two first errors alleged.
The first error cited by the defendan
was to the effect that the information
was not verified, the United States con-
stitution requiring that before a Grim
inal charge could be made against ma,
.probable cause" must be shown upor
oath.
The supreme court held that the verif.
cation against Shafer was sufficient.
The second error alleged was that thu
trial court improperly admitted evidence
of a row that occurred between Shafe
and Hawkins at the Columbia Garden!
hours before the killing.
The upper court took the stand tina
this evidence had been properly admitted
in the form that it had been confined to
which allowed it only to be directed t.
the question Of malice.
The error upon which the upper cour
reversed the case was the failure of tn
trial court to draw distinction between
murder in the first degree and murder II
the second degree.
The words of the statute We're read t
the jury, but they were not explained
The one element distinguishing the NOR
heinous murder from the lesser form !