The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1906-10-20

When were you employed by Mcwhir-
ter as his attorney"
Upon his return to this city from Los
Angeles"
Did you suggest to MIN that the chief
was in with the gang?"
Yes sir"
When did you conclude that the chief
was In with the swindiers?''
Immediately upon hearing McNhir-
did you have anything to do with this
prosecution
CT collected a great deal OF the evil
dence In the case and presented it to the
county attorney"
You are still retained by the Mcwhir-
ters as cOunSel?'"
mot in this case"
I'm any caSe?"
Yes, sir
DO you represent them IN the civil
suit brought against Donaldson
81 did until I decided to substitute other
counsel IN order to go on McWhirter's
bond
William G.. Rodigkeit, night manager
of the Vienna cafe, was the last witness
called by the state. He said he had known
Jim" Donaldson for five years, and that
the last time he saw him was about 8
o'clock on the morning of Sept. 20.
Thousand-DolIar Napkin Used.
He came in and sat down at a table"
said the restaurant man. land I started
to bring him a glass Of water. knife
ana anu napkin When ne SdIu. New
er mind napkin. I'll use this and he
reached into his inside vest pocket and
took out a wallet from which he took sew
eral bills. One of these was a $1,000 bill.
another a $500 bill and ] couldn't tell the
denominations of the others He tucked
the 81. coo bill in his vest as napkin and
put the rest away. Then he said to me:
What do you think of suckers carry
ing $4,000 around on their person? We
have got them on a train and hope they
keep going Then he told me he made
the money playing poker He said, I
think I'll take it and start ? gambling
house over the Occidental saloon Then
he told me he just walked in from the
jungles
to take the money and that 1T was like
taking money from baby
Or cross-examination he said that he
understood that Donaldson was an opium
the dope" on him. Max Lambrone, the
pantry man. was in the restaurant at the
time and saw Donaldson flourish the bill.
He was asked If Donaldson used the bill
as a napkin and he said that he did. WHIP
ing his mouth and rnustache with it.
The witness said he had told the cook
and the proprietor of the Vienna about
Donaldson flourishing the bills, but did
not tell any officers about it.
On redirect examination by Mr. Han
son the witness stated that the Vienna
was a large public cafe, 1requented by all
classes of people.
Assistant County Attorney Willard Han
son then announced that the state rested.
Dismissal Is Asked.
Judge Varian, for the defense. rose and
said:
'.At this point 1 would like to ask coun-
sci for the prosecution under which of
the two charges cited in the complaint
the state wishes this defendant held"
Attorney Arthur Brown said in reply:
There is but one offenSe charged in
the complaint, and we contend that we
A,,r nfTRnSn
Then" said the attorney for the de-
Tense. Il move the dismissal of this case
and the discharge of this defendant for
the reason that neither OF the charges
for I still contend there are two-is sus-
tanned by the evidence. and there is not
probable cause for believing the defendant
guilty.
Il g: Their from the remarks of the
counsel and the wording of the COM
plant the offense they have tried TO
prove is one that would be known in
common law as accessory after the fact
'In the complaint the words, 'concealing
the offense from a magistrate consti-
tutes ore crime, and harboring felons
accused of crime another distinct Of
Tense. In the last phrase quoted the
word charged l take it. means a for
NAL charge or complaint, not a mere s,Is-
picion of guilt. The word 'harbor' means
to aid the accused to avoid the penalties
attached to their crime, not merely SUI
fering them to escape or failing or omit
ting to apprehend them
ITO prove the crime of accessory after
the fact three elements of proOf are
necessary-the felony must have been
shown to have been committed; il must
be shown that the defendant knew who
the felons were who committed the crime
and it must be proven that the defendant
sheltered them from pursuit to some ex-
tent. mere failure to act is not suf-
ficient to constitute this crime"
Judge Varian cited several cases from,
the supreme court reports. which he said
tended to show the foundation for his
conte ntion. He said:
I'm all this evidence there is nothing
that even tends TO show that this de-
PENDANT gave any aid or assistance to
any of these felons''
At this point Judge Armstrong adj
journed the case until Tuesday morning
stating that there was another case in his
court set for today. and that on Monday
he would hold court in Summit county.