The Caldwell tribune. [volume] (Caldwell, Idaho Territory [Idaho]) 1883-1928, 1908-03-21
ORCHARD PLEADS GUILTY
Continued from page !

Inc legislature Is authorized by
the constitution to prescribe by law
for the sessions of the board, the
maner in which application shall be
made, and to regulate the proceed
ings thereof The right, however, to
Communication or pardon under the
constitution exists "only after con-
viction and judgment" In other
words, no power Is given under the
constitution to grant a pardon or
communication prior to conviction, and
for that reason the authorities above
quoted to the effect that trial may
may be made by the defendant for
executive clemency, have no appli-
cation to this case, except as they an
nounce the general doctrine and lay
down the rule as to the implied OBJ
legation upon the part of the State
resulting from the use of the &C
complete as witness against his CO.
defendants.
The rule upon which the equita-
BILE right to the recommendation for
partial or complete immunity depends
is based upon the assumption that
the accomplice thus used as a wit
ness has acted in good faith and tes-
titled fairly and fully to the whole
truth so far as it relates to the en-
tire transaction, involving both him
self and his accomplices or co-defend-
ents. / am more than satisfied that
the defendant now at the bar of this
court awaiting final sentence has not
only acted in good faith in making
the disclosures that he did, but that
he also testified fully and fairly to
the whole truth, Withholding nothing
that was material, and declaring
nothing which had not actually taken
place During the two trails to which
l have referred the testimony of the
defendant covered long series Of
transactions, involving personal re-
lations between himself and many
others. In the first trial he was sub
jected to the most critical cross-ex-
animation by very able counsel for
at least 6 days, and I do not now
recall that at any point he contradict
ed himself in any material matter,
but on the other hand, disclosed his
connection with the commission of
many other crimes that were prob
ably not known to the attorneys for
the State, at least not brought out by
them on the direct examination of
the witness. Upon the second trial
referred to the same testimony was
given, a most thoro and critical cross
examination of the witness followed,
and in no particular was there any
discrepancy in material matter be-
tween the testimony given upon the
latter trial, as compared with the
testimony given by the same witness
On the former trial. 1t was the par
ticular province of the Court to OBJ
serve and follow this witness upon
the former trials, and am of the
opinion that no man living could con-
ceive the stories of crime told by the
witness and maintain himself under
the merciless fire of the leading
cross-examining attorneys of the
country, unless upon the theory that
he was testifying to facts and circum-
stances which had an actual existence
within his own experiences. A child
can testify truthfully and maintain it.
self on REORGANIZATION. A man
may be able to frame his story and
testify falsely to brief statement of
facts involving a short single trans
action and maintain himself on
cross-examination. But cannot con-
ce1ve of case where even the great
est intellect can conceive story of
crime covering years of duration,
with constantly shifting scenes and
changing characters, and maintain
that story with circumstantial detail
as to times, places, persons and par
ucular circumstances, and under as
merciless a cross-eXamination as was
ever given witness in an Ameri-
can court, unless the witness thus
testifying was speaking truthfully
and without any attempt either to
misrepresent or conceal. Believing
as do that this defendant acted in
good faith, and that when called as
a witness for the State, he told all
and withheld nothing, can the more
readily fulfill the duty that I consider
the law imposes upon me.
In passing upon this question 1t Is
1mmaterial that juries in the two
cases tried have declared that they
were not satisfied of the guilt of the
defendants on trial. The statute of
the State imposes bar to a convic-
ton on the testimony of an accom-
plice alone, no matter tho he may be
believed by the jury, unless there is
other and Independent evidence tend
Ing to connect the defendant on trial
with the commission of the crime
And again. in each of the cases tried
the Court at the written request of
each of the defendants, instructed
the jury that verdict of not guilty
did not mean that the defendant on
trial was innocent, but rather that
his guilt had not been proven beyond
a reasonable doubt in the manner
prescribed by law. For these reasons
1t is at once apparent that the YER
diets of the juries referred to are
not necessarily at variance with the
views here expressed.
/ am thoroly satisfied that under
the facts in this case the Court has a
plain duty to perform, and that the
authorities quoted leave no alterna-
tive in the matter, and under these
authorities the defendant must be
recommended to the clemency of the
hardening hoard with tho f,II oss,,,