The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1907-05-26
OPPOSED TO THE
DEATH PENALTY
Juror Accepted in the Haywood
Case Under Somewhat Re-
markabIe Conditions.
FOUR CHALLENGES REMAIN
LAWYERS SHOWING EFFECTS OF
THE STRAIN.

fhfNilNs
Boise. Ida. May 25.-The unusual spec
tacie of accepting a juror opposed to CAPT
tai punishment except as an extreme
measure for the protection of society
against war and anarchy pleading his
own disqualification came today in the
Steunenberg murder trial and his reten-
ton after he had clearly shown that he
was disqualified raises a question, as to
the regularity of the proceedings.
j. E. Tourtellotte, an architect of Boise,
is the juror and his retention seemed TO
be clearly due to a willingness of both
sides to gamble on his views when the
jury reaches the supreme solution of the
case. the state on the hope that 1t can
meet his ideas as TO anarchy, the defense
on his opposition to the death penalty
Passed by Both Sides.
Mr.. Tourtellotte came with the rest of
the talesmen early in the day and his di-
rect examination by Senator BOrah devel-
oped in a mild form his scruple against
the inflictiOn of the death penalty in or
binary murder cases. His acceptance
by the state was a surprise that was
within few minutes intensified
| by the views brought forth by
questions pTOpounded by Clarence
Darrow of the defense. TOurtellotte
swore that he was opposed to capital pun
| ishment except in time of war, and when
society must defend itself against organ
| izations seeking to destroy it. He de-
clared that society had no right to take
from man anything that it could not
/ give but as for anarchists, if they were
the kind of men he thought they were,
he would hang them on sight The de-
! tense seemed under the impression that
Senator Borah was not in earnest and
probably on that theory passed him, too.
Samples of the Juror.
When the jury filed in after lunch Tour
| tellottee stood in his place and claiming
| the attention of the court said that he
was opposed to capital punishment and
pointed out that it would be impossible
/ for him to take the oath necessary at the
/ outset of the trial. Judge Wood read the
statute covering the matter and it showed
| that a jury having conscientious scru-
pies against capital punishment could
not be permitted or required to serve
| He asked counsel what they had to say
about the matter. Senator Borah Ques-
/ toned TOurtelOtte further on his willing
ness to inflict the death penalty on the
members of an organization seeking to
destroy society, saying that the state
was quite willing to rest its case on that
proposition. Tourtellotte restated his po-
sition as to anarchy, but protested that
| this was the case of one man being tried
| for murder. His answers, however, sat
/ isfied the state.
Error Cannot Be Claimed.
Neither side would challenge nor offer
any further suggestion and there the
matter rested. Counsel for the state said
/ privately after adjournment that the in
cident could not constitute error in the
case and that there existed no means
whereby either side could in future plead
it, 1t is thought probable that when it
comes time to swear the jury Tourtel-
lotte will refuse the oath and compel the
court TO excuse him from serving.
Four CHALLENGES Remain.
Both sides found a pay streak of quail
ification in the second section of the spe-
cial venire and besides Tourtellotte two
other talesmen qualified. They are Fin
ley Mclean, whose examination was in
progress at adjournment last night, and
Z. r. Crow, a retired farmer. who now
lends a little money for a living. Mr..
Grow was almost Immediately challenged
SD Sd Sz5s0sS> SSSS1 80 nlSOs2570cS; NE0
} ever brief lifted The case and challenge
forward The defense also challenged
Juror John Whitlock today and the state
challenged Juror George Mcintyre. The
vacancy created by the sixteenth chal-
ilenge is still untitled. there are four chal-
lenges uneXpended, and there are twelve
talesmen of the second special venire left
unexamined. The pay streak ran out be-
fore the day was over and unless there
is mighty good luck with the little squad
of unused talesnlen there will have to be
another adjournment sometime on Mon
day and a third special venire.
Lawyers Get snappy.
The long strain of jury-getting seems
. to be showing on the nerves of those who
are doing the work Today when the state
| challenged a talesman for bias, Attorney
Richardson remarked that the state had
tried hard enough to qualify him. James
H Hawley took serious offense at the
remark and said that it was untrue and
asked for the protection of the court
saying that things were going 10 be diff
ferent from now on
Judge Wood told him to sit down, but
the order had to be repeated before il
was obeyed.
The court continues to stiffen against
the release of talesmen on excuses light
and frivolous. Today Judge Wood took
a hand in the examination of every tales
man and made sure OF the existence oi
disqualification before acceding to it.