The pioneer express. [volume] (Pembina, Dakota [N.D.]) 1883-1928, 1905-06-16
TEN YEARS FOR BARRY.
Supreme Court Holds That Conviction
at Second Trial Was ILLEGAL.

at Second Trial Was illegal.
William Barry will serve term of
ten years in the penitentiary at Bis
marck for the murder of Andrew Mel
len on Jan. 3, 1901.
The supreme court of North Dakota
handed down q decision reversing
Judge Cowan and holding that he
should have received the verdict Of the
jury at Langdon, finding Barry guilty
of murder in the second degree. The
jury also fixed the punishment Of the
accused at seven years in the peniten-
tiary.
The minimum penalty for this crime
is ten years, and Judge Cowan refused
to accept the verdict and the jury was
discharged without reaching an agree
ment.
The court holds that Barry was in
former jeopardy, and on that account
the third trial at Grafton was nullity.
1t also holds that the verdict of the
jury at Langdon in finding Barry guilty
of manslaughter in the second degree
was a legal one, and his punishment
for that crime is fixed by the supreme
court at ten years in the penitentia,N,
his sentence beginning on the day that
the jury offered that verdict in court
at Langdon in December, 1908.
With good behavior allowances, Bar
ry will secure his freedom in about
seven and a half years. The Barry
case has been before the public for
several years and has attracted wide
attention. He killed Mellen. his hired
man, after the latter had confessed his
intimacy with Barry's sister.
He was tried on an information
charging murder in the first degree
during the summer of 1901, at Lang
don, and was convicted and sentenced
to life Imprisonment in the peniten-
tiary.
Tracy r. Bangs appealed his case to
the supreme court with the result that
Barry was granted new trial. His
second trial was also held at Langdon.
before Judge Cowan. and the jury con.
victed him of murder in the second de-
gree and fixed his punishment at seven
years in the penitentiary. Judge Cow
an refused to accept this verdict and
sent the jury back for further consid-
Grafton of the case. The jurors re-
ported that they were unable to agree
on any other verdict, and they were
discharged. That term Of court was
continued for several months, and be-
fore it's adjournment the state asked
for and was granted change of VEN
ue, the case being sent to Walsh coun-
ty for trial.
At the opening Of the third trial at
Grafton, Mr.. Bangs again appearing
for Barry, objected to the Jurisdiction
OF the court on the grounds that Barry
had been convicted by a court Of COM
petent jurisdiction at Langdon, and
having been once in jeopardy could not
DE tried again. Judge Cowan overrul-
ed the objection and plea was inter.
posed that Barry had been acquitted
Of murder in the first degree when no
was convicted of murder in the second
degree by court of competent juris-
diction at Langdon, and the further
plea of former jeopardy was also inter-
posed. Judge Cowan denied all these
motions and Barry was again tried and
convicted and again sentenced to life
Imprisonment at Bismarck.
The case was then appealed to the
supreme court from the decisions Of
Judge Cowan in overruling the motions
made in special pleadings at the cpen-
ing of the case in the Grafton trial.