The Daily Ardmoreite. [volume] (Ardmore, Okla.) 1893-current, 1908-10-27

firmed the decision OF the special
Judge i'm the case Of the state VS..
VIII oJhnson. colorcd, who was
found guilty of assaulting and muir
derng Mrs Mary Cupp. aged a,
near Shawnee. on April 6. 1907,
and sentenced to be hung for the
crime on September "a, last, but
whose execution was stayed by Gov.
ernor Haskell pending an appeal
of the case to the supreme court.
until Friday. November -, 1909.
Johnson. who Is about 90 years of
age. will not necessarily hang on
that day, as the execution cannot
legally take place until the mandate
Of the supreme court has been re-
turned 10 the lower court. which
Will be more than twenty days off,
as the court must give twenty days
for the defendant to file motion
for rehearing.
Johnson was indicted on March &c,
1908, A special judge was appointed
to hear the case and jury was en-
paneled, before whom ne entered
plea of guilty. The court submitted
his plea 10 the jury which found
him guilty of murder In the first
degree and fixed his punishment at
death. The defendant filed a motion
for new trial. which was over
ruled by the trial court, which is
sustained In the opinion OF the court
today. Johnson was then sentenced.
his time for appeal having cx-
pired. Defendant then appealed to
a decision from the supreme court,
which request was granted by Gov
ernor Haskell. The supreme court.
In AN opinion handed down on May
6, 1908, by Justice Dunn, held that
the conviction of the defendant was
irregular. At this time the dcfend.
ant had perfected his writ of error
to the supreme court, and as che
district court Of Pottawatomie coun-
ty, where the defendant was tried,
convicted and sentenced was still
In session, the trial Judge learning
of the ruling of the supreme court
set aside his order overruling 1.
motion for new trial, but tooN
no action on the motion In arrest
or Judgment. This was done over
objection of counsel for the de-
fendant. The defendant was agai..
tried and again sentenced TO death.
A writ of error was then sued out
in the supreme court asking re
view OF the conviction. which was
| pending at the time OF the crimi.
nal court Of appeals was created.
The case is one Of statewide
| prominence owing 10 the brutal
manner in which the aged and de-
crepit woman was assaulted and
| killed by the defendant. The state
| appointed two able attorneys to rep.
resent the defendant and the case
| has been hotly contested. At the
/ time of thee rime mob came near
| lynchug the defndant which, IL is
stated lead him to change his plea
/ from guilty 10 not guilty at his SEQ.
ond trial. The attorneys for the
defendant took 800 exceptions to the
record of the court, which contains
over 500 pages. The criminal court
of appeals passes upon each of the
exceptions and objections. The syl-
labus of the opinion is as follows /:
| First.
If IT appears to the trial court.
after overruling motion for n new
trial or n motion In arrest Of JUDI.
ment, that there was irregularity in
obtaining the Judgment, he may, OF
his own motion, modify or set aside,
his order overruling the motion for
a new trial or the bottom in arrest
Of judgment, This may be done nj
or after the term at which said
judgment or order was made: even
though the party against whom the
judgment was rendered may object
| 10 such action.
/ Second.
|. Where an indictment charges
| the defendant with the murder OF
Mary Cuppy,' it Is not necessary to
allege that she was human being,
this being matter OF proof, rather
/ than of pleading
.. Where an indictment for mur
der alleges that the wounds tha,
caused death, were inIno;rd .Itn q
piece of twoinch plank" or "an
aXhandle," 1t is not necessary to al
lege that these instruments were
deadly weapons. or give their size
weight or dimensions.
Third