The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1907-12-15

the other eleven jurors admonished him
that it was his duty under his oath
not to stand out alone against his elev-
en- fellow jurors, but TO submit TO their
Judgment and that such was the I'M
Outstanding they had of the court s
charge; that Mr.. Walker yielded and
consented TO the verdict for that rea-
son and for no other, and that he then
believed and still firmly believes that
the particular crime of which Day was
convicted was not established: that if
he had understood his duty in that re-
gard then as well as he understands il
now, he never would have consented TO
the verdict returned in the case.
While the verdict and judgment in
the eye of the law are not affected
thereby, it still leaves a faint on both
in fact, which deserves some consider
alton at our hands in a case of this
character. The people of the state of
/ Utah cannot afford to have the death
penalty inflicted when based upon a
verdict or judgment against which
there is some well grounded suspicion
in fact, or upon which rests some faint
of serious irregularity.
Testimony as to Character.
In this case many citizens of this
city testified upon the trial of Mr.. Days
peaceable disposition and upright char
acter as a man. Many more have vol
unfairly come before the board and
have testified to the same effect. This
testimony is supplemented and corro-
borated by a large number of private
citizens and officials of the county of
Mr.. Days former residence in the state
of Texas. From all this it appears that
the condemned man has led a life en-
tirely free from crime or moral turpi-
tude. Nothing has been shown against
him that would justify anyone in claim
ing that he was a man inclined TO COM
NIT an act of violence without any pro-
vocation upon anyone. To this is add
ed the testimony of all the guards and
the warden of the state prison and 9TH
ers to the effect that his conduct has
been exemplary while incarcerated in
the state prison for the past eight
months or more, and that his demeanor
and department during the trying or
deal of the past few weeks through
which he has passed were such as
should recommend him to that Glenn
ency which the law wisely permits and
humanity invokes.
Sentence Ordered COMMITTED.
We have given this case a most
careful consideration. We have de-
voted three full days to hearing the
testimony and arguments both for and
against the application of the prisoner
We have granted a rehearing upon
which some new facts were developed
and some new light shed upon the
transaction as well as upon the char
acter and former standing and reputa-
ton of the condemned man. In the
light of the whole record and of the
testimony submitted before us, we have
an abiding conviction that Mr.. Day is
not a vicious man, nor one of a de-
PRAYED and malignant heart or dispo-
sition. We are fully persuaded that
both law and Justice are fully vindi-
Gated and satisfied by the Communication
of the death sentence to one of life i'm
prisonment, for the reasons above
stated.
Owing to the Importance of the case
we have deemed it best TO set forth
our reasons at greater length than is
customary in ordinary cases.
John c. Cutler, governor of Utah.
w. NJ. McCarty, chief justice supreme
court of the state of Utah.
D. n. Straup, associate justice su-
preme court of the state of Utah.
court of the state of Utah.
The Dissenting Opinion.
In dissenting Attorney General H. A.
Breeder says:
II regret that / am compelled TO
withhold my assent to the decision
reached by the brothers of the pardon
ing board, for the reason that 1 am
unalterably convinced that Day had
a just. fair and impartial trial. and
that the verdict returned by the trial
jury was the only one that could have
been returned under the evidence that
Day on the morning of the killing,
about five or six minutes after a brief
but heated conversation between him
self and VOss. he deliberately followed
him into Wares house and without no
tice or warning through a partially
open door shot his victim to death.
4 can see no extenuating circum-
stances in this case. and / am firmly
of the opinion that the sentence of
death ought to be carried out, and
therefore. without further discussion, /
must dissent from the decision of the