Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-06-01
Barry Case.

The supreme court has handed
down it's decision in the now famous
Barry murder case, directing the dis
trict court to modify it's judgment so
that the period of Barry's imprison-
ment will be the same as it would
have been if the ten year sentence to
the penitentiary had been imposed up
on the return of the former verdict,
November %, 1903, and as thus modi-
fed the judgment is returned. The
effect of this decision is to sentence
Barry to the penitentiary for ten years
from the 28th day of November, 1903,
instead of the life sentence under
which he is now incarcerated.
Barry was tried for the murder of
Andrew 'Mellum, committed on the
third day of January, 1901. He was
tried in the following July and the
jury returned the verdict of guilty of
murder in the first degree, fixing pun
ishment at life Imprisonment This
judgment was reversed by the su-
preme court and new trial ordered
The second trial was commenced at
Langdon on the third day of Novem-
Der, 1903, before Judge Cowan. At
the conclusion of the trial, the jury
returned into court a verdict finding
the defendant guilty of murder in the
second degree and fixing his punish
ment at imprisonment for seven years
in the penitentiary. The court re-
fused to accept this verdict and re-
turned it to the jury. The jury failed
to find any other verdict and was dis
charged by the court. Thereafter the
state secured a change of venue to
Walsh county, and Barry was again
tried and the verdict of murder in the
first degree rendered and Barry's
punishment fixed at imprisonment for
life. The supreme court in modifying
this judgment, holds that the verdict
rendered at Langdon and which Judge
Cowan refused to receive is a legal
and valid verdict, Objectionable only
in that 1t fixes a shorter period of
punishment than that fixed by statute
for murder in the second degree
This fact, however, the court does not
make it either insufficient or illegal,
for the legislature in section 8246 pro-
vides that if the punishment imposed
by the jury in the verdict is under the
limit prescribed by law for the offense
of which the defendant is found guilty
the court may receive the verdict and
| thereupon render judgment and pro-
nounce sentence for the lowest limit
prescribed by law in such cases, and
vice versa. The court, therefore, says
that it Is clear that section 8246 must
| be held as mandatory and that It was
the absolute duty of the trial Judge to
receive the verdict and impose judg.
ment thereon. The court holds under
these declarations and. construction
that the subsequent trial and verdict
in Walsh county was without authori.
ty of law and void, and the trial court
exceeded it's authority in sentencing
the defendant to life Imprisonment
The syllabus OF the case is as follows:
1. Whether a statute Is permissive
or mandatory depends upon the intent
Of the legislature.
| 2. It Is a general rule OF construc
ton that statutes which confer upon
public officers power to act, for the
sake Of justice or concerning public
interests or the rights Of third per
sons, although permissive In form, are
mandatory and impose positive duty
TO act when the condition calling for