The Birmingham age-herald., 1907-05-26
But is Retained After Showing
 OisqudiflcaHOns
IN TIE HAYWOOD TRIAL
Tourtellette, Architect, Against capi- tai Punishment Except In Case of War or Anarchy-State Ac-
 cepts Him-Two Others.

Boise, Idaho, May 25.-The unusual spec taele Of accepting q juror opposed to capital 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, raised question as to the regularity of the proceedings.
 John Tourtelette, an architect of Boise. IS the Juror and his retention seemed to be clearly due to a willingness of both sides to gamble on hls views when the jury reaches the supreme solution of the case, the state in the hope that 1t can meet his ideas as to anarchy, the defense on his opposition to the death penalty.
 Judge Wood read the statute covering the matter and 1t showed that a juror having conscientious scruples against cap- ital punishment could not be permitted or required to serve. He asked counsel what they had to say about the matter. Sen ator Borah questioned Tourtelette further on his willingness to inlict the death pen atty on members of an organization seem- ing to destroy society, saying that the state was willing to rest it's case on that proposition. The juror restated his posi- ton as to anarchy, but protested that this was the case of one man being tried for murder. His answers, however, satis- fled the state.
 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- cldent could not constitute error In the case, and that there existed no means whereby either side could in future pleaa It. It is thought probable that when II comes tifue to swear the jury TourteIette will refiise to ike the oatf and compel the coat to e-z ase him from serving.
 Both sides found pay streak of qualln- cation In the second section of the spe- clal venire, and beside Tourtelette, two other talesmen qualified They are Fin ley Mclean, whose examination was in progress at adjournment last night, and E. F. Crow, retired farmer, who now lends money for a living.
 MT. Crow was almost immediately chal. lenged by the defense. There are four challenges unexpended and there are twelve talesmen of the second special ve- hire left to be examined. They pay and unless there is good luck with the It, tie squad of unused talesmen there will have to be another adjournment some time on Monday and a third venire or dered.
 At the opening of the Haywood trial to- cay Judge Wood granted the state per- mission to indorse the names of several additional witnesses on the indictment against the accused miners the defense notin gan exception under a decision of the Idaho state supreme court, which held that the filing of additional witnesses after the trial has begun is error without prejudice. Attorney Richardson declared that the defense had been unable to locate many of the witnesses TOT the state and had been informed by counsel for the state that they did not know the ad- dresses of many of their own witnesses If surprises should develop from the tes- timony of these unlocated witnesses Mr Richardson said q delay might be looked for
 Finley Mclean. q Seotchman by birth, who was accepted yesterday by the state qualified today after a thorough examina- ton by Attorney Darrow for the de- fense. He took his place as q juror in seat No. 2. The defense, according the seventh of It's preemptory challenges, excused John Whitlock, a nurseryman at No. 6, from further service. Whitlock was formerly a guard at the penitentiary un- der Governor Hunt
 The first two talesmen called to replace Whitlock, were dismissed because of bias and then came one of the most interest ing points of the trial. j. T. Louretelette an architect, was called. He told the state that he had an opinion, but 1t was not such that he would condemn a man on. Asked if he was opposed to capital punishment Tourtellette caused quite stir by answering:
 Don't Believe in Hanging.
 "As a general proposition l am, I be |. lieve the death penalty should be ln- fiicted only in cases of war and against an organization which Is against society"
 The defense, when its examination be- gan, questioned the talesman closely on this point, MT. Darrow taking che inita- tive.
 What do you mean by that state ment?" he asked.
 'I believe" replied Tourtellette. that the only excuse for inflicting death Is self-defense A man has right to de- fend his own life. So has society, when a band of anarchists Is formed to war against it. I don't know very much about anarchists, but if they are what think they are l believe fin hanging them on sight"
 What about sociallsts?
 "I don't know much about socialists"
 Did you mean any special significance when you said organization against so- ciety?'
 NO"
 Did you mean the Western Federation of Miners?'
 NO"
 "Or a labor union?"
 No. l meant what l take as anarchy
 You mean newspapers are anarchstic, I suppose?"
 Newspapers are the principal means of enllghtening ourselves" argued the tales man.
 You say you are opposed to capital