Audubon Republican. [volume] (Audubon, Iowa) 1894-1925, 1902-12-25
TWO MEN ESCAPE eALLows.
Supreme Court Grants a New Trial
to Phillips and Brooks.

to Phillips and Brooks.
Des Moines, Dec. 22.-New trials
have been ordered by the supreme
court in two murder cases, those OF
Albert G. Phillips and Louis Brooks,
the Greenville bank robbers, and that
Of Matt Hunter, the slayer of Homer
Holland, of Mt. Ayr. In each case
the trial court was reversed because
of errors in instructions.
The result CT the decisions of the GU
preme court is that the executions OF
Phillips and Brooks, both of whom
were originally sentenced to death
December 10, are Indefinitely post
poned. Indeed, there is now almost
no prospect that either of the men
will ever be hung, and in view of the
ruling made on the case by the SUI
preme court, it appears unlikely that
they will be convicted OF worse crime
than that of murder in the second
degree, the extreme penalty for which
is life Imprisonment.
The history of the case of Phillips.
and Lrooks has been told and retolc
repeatedly. November 10. of last year
the bank at Greenville, Clay county
was robbed, the crime being commit
ted, as was made clear by the subse-
quent admissions of the men, by Phil
lips, Brood S and one Dolan, who was
killed later at Albert City. The next
day Marshall Iodine, OF Albert City
town in the eastern part of Buena
Vista county, was advised the three
men su; pected, described as mulat
to and two white men, were headed
toward Albert City. They were locat.
ed in the wa ting room at the depot
by the marshal. That officer organic.
ed posse in the business section of
the town and, going to the depot,
the marshal and posse rushed into
the waiting room with weapons level.
ed and ordered the three suspects to
throw up their hands. The bank rob
bers instead of complying, began tc
fire on the posse, and there was gen.
eral Interchange of shots. In the fusi
lade, John Sunbald was fatally shot
Iodine was wounded, and Dolan, who
was with Phillips and Brooks. was
killed. Phillips and Brooks were cap
tured, indicted for murder in the first
degree, and were convicted and sen
fenced to hang in the court of Judge
A. d. Baillie at Storm Lake.
The supreme court, in an extensive
opinion written by Judge Weaver, re
verses the lower court on errors in in
structions.
The chief question that arises re
lates to the instruction of Judge
Baltic that a presumption of wilfui
and premeditated intent to murder
g.. - LnA 4.
lcs.ded weapon at another, takes aim
and fires with fatal effect. The SUI
preme court holds differently. 1t lays
down this principle: Proof of inten,
tional homicide without circumstan
ces of mitigation or excuse affords Q
presumption of malice and therefore
Of murder. but that presumption of
murder is in the second and not In
the first degree" Throughout, the
court indicates the proper distinction
between murder in the first and muir
der in the second degrees was not
made in the instructions and it comes
close to criticising the method Of ar
rest and holding that the defendants
were justified in resisting.
In the case of the state VS.. s. M
Hunter, an appeal from the Ringgold
county court, presided over by Judge
R. l.. Parrish, there was also a rever
sal on errors in istructions. Matt
Hunter, as he was generally called
shot and killed Homer Holland, one OF
the leading all around athletes of the
state and a former student at Drake
university-of his city. The shooting
was on the streets in broad daylight
and was the result of quarrel over
a gambling debt. The murder was
committed November 9, 1901. Hun
ter was convicted of murder in the
second degree and sentenced to i'm
prisonment for life. He is now serv
ing out the sentence at Fort Madison
In reversing the lower court and re.
manding the case for new trial, the
supreme court, in an opinion by Judge
Deemer, makes an important point
of an error of the lower court In
the challenging Of the jury. When the
jury was being selected, after the
state had given eight peremptory char
lenges and the defendant seven, Judge
Henry, counsel for Hunter. announc.
ed that he waived one more challenge.
r. H. Spence, counsel for the other
side, said: so do we" The court
asked the jury to be sworn. and when
Judge Hel.ry interrupted and asked
the right to another peremptory chal.
lenge, the court refused to permit 1t.
The court holds this was a reversible
error and lays down these rules. "1st
That the waiver of peremptory
challenge does not amount to an &C.
ceptance OF juror already in the box.
"2d-That after a waive of all chal.
lenges, but before the jury is sworn,
a party who has exhausted the mum.
Der to which he is entitled may exer
sise a further one peremptorily."
II is also held the lower court erred
in not admitting evidence as to the
quarrelsome disposition of Holland, as
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