Omaha daily bee., 1902-04-04
ATTACKS FELLOW MEMBERS
Lancaster County Commissioner Brings
Legal Proceedings.
MARK TlLToN is THE ACCUsER
SD c 4. ID. BOrgeIt aud g. W. We'll
ton rs Offenders and De-
cinres Impeachment May
Fellow.
trrom a star correspondentl

lETOrn a Stan tUIIfEDDNutNA.I
LINCOLN, April 3.-(Special Telegram)-
Proceedings will be begun in the district
court tomorrow to set aside a contract
awarded by the Lancaster county commits
sioners to c. G. sheely Of Lincoln for sup
plyiug and repairing bridges in the county
during the ensuing year. The information
will be given by Mark Tilton, a member
Of the county board, and complaint will
he made against A. ID. Borgelt and g.. w.
welton. the other members. Mr.. Tilton
aavs impeachment proceedings against Bor-
Selt and Welton may be instituted later.
TIL charges are Of a sensational nature.
Numerous Irregularities in the awarding oil
contracts are alleged.
Basis for Rhea's Appeal.
The action Of the supreme court on Rhea 5
motion for a rehearing has left open tor us
pute the grave question OF whether or not
A man committing murder during the per
petration Of a robbery can be convicted OF
murder in the first degree. Rhes, with
other men, entered a saloon in snyder
Neb.. and demanded all persons therein to
throw up their hands. One OF the trio
then riHed the cash register Of its contents
and during the commission Of the robbery
Rhea shot and killed Herman Zahn, the
keeper OF the place. A third man remained
on the sidewalk in front Of the saloon and
participated in the robbery by preventing
the bartender from escaping through the
window. The evidence, 1t was maintained
by the states attorneys. showed conclu-
sively that robbery was intended.
The statute under which Rhea was con-
vlcted and sentenced to be executed was
severely questioned as to the provision
which was held by the attorneys for the
state to provide for conviction In the first
degree where It is shown that the murder
was committed during the commission of
n robbery. This contention was supported
by Judges Sullivan and Holcomb. In a
memorandum filed by Judge Sedgwick the
opposite position is taken. The expression
Of Judge Sedgwick will be one of the
grounds upon which the plea for executive
ciemency will be made.
Judge sedgwick's Dissenting Opinion.
Dissenting from the majority Of the
court, Judge Sedgwick said: The trial
court instructed the Jury that the uninten-
tional and accidental killing Of a human
being Is murder in the first degree, as al
the time of the killing the defendant was
engaged in attempting to perpetrate a rob-
berry upon the person OF the said deceased
This was the rule OF common law, and
many OF the states have adopted 1t by
statute. Many Of the severe rules Of tbs
common law have been modified by ouI
statutes upon the theory that crimes are
not prevented by too severe penalties
Some Of the states have refused to legalize
the taking of human life as a punishment
for crime The tendency has been and IL
toward the adoption of more humane rather
than more severe penalties. We have nc
common law crimes IN our state. No man
can be punished for crime except In per.
suaAce Of a plain statute defining crime
and providing for the punishment.
The language OF the statute construed
by the instruction referred to Is: II any
person shall purposely and of deliberate
and premeditated malice or in the perpe'
tration or attempt to perpetrate any rape
arson. robbery or burglary or by admins
tering poison or causing the same to b'
done. kill another = . " every person
SO offending shall be deemed guilty o.
murder in the first degree and the instruc'
tion is predicated upon the construction o
this statute in Morgan against State. s.
Neb.
My mind refuses to SO construe thu
statute. The words in the preparation OIL
attempt to perpetrate any rape, arson, rob.
NA VI nave ~ oeMN -
to the word 'purposely' and to all othe
parts of the section that the words by ad
ministering poison or causing the same 4
be done have" q
After referring to three authorities tina
were cited by the state. Judge Sedgwicl
continues; ITO my mind these cases seen
inconsistent with each other and they GER
talniy are so unless the legislature is with
out power to make the killing of a humai
being by administering poison con
stitute murder when not done with the pur
, pose OF killing. That the statute make
the same provision in precisely the sam
words in regard to killing while attemptini
to perpetrate a robbery cannot be quss
toned. so that II no purpose to kill 4
necessary in the case to constitute tn
crime Of murder 1t certainly cannot be Z
the other unless 1t is not competent 70
the legislature to so provide in the on
case but rs competent in the other. But
the legislature could not make the KILN
BY poison without the purpose to Kill muir
der, why change Il with an attempt to d
Sn whan tha atatuta i4 auaranffhia - an