Arizona republican., 1903-11-12
DREW FIRST BLOOD
The Defense in the Price
Bribery Case
On Account Of the Ill Health Of the
Defendant All the Cases Were Con-
tinued for the Term.

The defense drew first blood yester-
day in the Price bribery case, secur-
ing an instruction from the court to
find verdict of acquittal on the
ground that the prosecution had failed
to prove a material allegation con-
tanned in the indictment. The defense
in it's motion the day before for an
instruction to acquit had contended
that there was a variance between the
proof and the indictment in several
particulars. One was that it had been
alleged that a certain sum of money,
$500, had been paid to the defendant
by Mrs. Emma L. Miller, when, in fact.
Mrs. Miller had only sent to w. +.
Murphey, former chief clerk under MIR.
Price, a certificate of deposit for that
amount; that the certificate had net
come from Mrs. Miller, but that she
had acted as agent for another person.
who should have been named in the
indictment as the person from whom
the money had been received. Both
OF these contentious were set aside by
the court, but there was another one
raised yesterday morning and argued
at considerable length. That was that
the prosecution had failed to prove
that the money had been received by
the defendant before the completion
of the work which it was alleged had
been done out of it's order under the
influence of the money alleged to have
beer paid. 1t was a theory of the de-
Tense that bribery cannot be effected
by q promise.
This view was sustained by the court
in a decision rendered 1T the opening
Of the afternoon session.
tr.6oa Gaf1.
From my present light on the ques-
ton raised by the defendant that
there is a failure to show any law
that required the returns to be pre-
pared by the surveyor general in their
order, l cannot agree with the conten-
tention of defendant in that respect.
! think by law the surveyor general
was required TO bring out these re-
turns in their order, as allegel in the
Indictment
ION the question of a varian,e be-
tween the Indictment ln1 the proof, l
cannot agree with the contention of
the defendant that If the money was
delivered to the defendant by me
ether person than the person alleged
in the indictment, where The proof
showed that the money came from he~,
that the mere delivery by the hapd,
or from the custody. Of some other
person, would be fatal to the indict-
ment as it stands.
Il think, however, that it is incum-
bent on the prosecution to prove in
this case that the money was paid to
the defendant before the completion
and delivery of the document from he
land office. l think it is necessary
that the prosecution should prove that
the allegation in the indictment being
that money was paid to have their ac-
ton influenced with respect to TIE
work. The allegation is not that this
defendant received any obligation for
the payment of the money. but that
the money was received to influence
their action l think, therefore. that
the government must prove thA: the
money was so received before that ac-
ton took place
In this case there is evidar = thai
the money was paid to the defendant,
but there is no evidence that il was
paid prior to the time of the COM
pletion of the work by the defendant.
Il do not think there is sufficient
proof on that point to go to the. jury.
If on the evidence as it stands the
jury should determine that the money
was so paid in advance, l think the
verdict would have to be set aside: in
other words. there must be evidence,
positive evidence of that fact intro
duced by the prosecution-it insult be
affirmativcly shown. That being So. it
is the duty of the court 70 instruct
the jury to acquit the defendant o.
the ground of variance between the
Indictment and the proof. l. is a.
ways the duty of the court to do that
where the verdict would have to be set
aside if the jury should find other
wise. both in civil and criminal cases.
Gentlemen of the jury: The pTcs-
ecution in this case, the couct directs
you, is required to prove certain al
legations. One of the material ale