The Bemidji daily pioneer. [volume] (Bemidji, Minn.) 1904-1971, 1911-10-05

OSSiAs III zOCIolS Ouu6Cs w :. -. V1CS1ouE
ahan, in the case against DR.. Du-
mas, the defendants attorney alleg-
ing that the Indictment is faulty and
that the evidence submitted has not
proved the crime alleged.
The state insists that the indict-
ment is proper and the proof in har-
mony with it. - =
Judge Marshall A. Spooner made
the argument for the defense and al
afternoon he did not finish until
about 3 p. m. today.
Attorney e. E. Mcdonald for the
state presented an argument which
consumed about an hours time, when
he gave way to Assistant Attorney
General James. who completed the ar
gument for the commonwealth.
At 4:40 this afternoon the argu-
ments were completed and Judge Nc
Clenahan announced that he would
take them under consideration until
tomorrow morning, commenting
briefly on the point that if he were
to grana the contention of the de-
PENDANT it would mean that the state
could not take an appeal on the
point of law involved while that priv
ilege would be open to the defendant.
The court, however, gave no indica-
ton as to what the final decision
might be. r.. 49,. -s
eve expect favorable decision, -
said DR.. Dumas today, "but in case
it is not we shall have about Is wit
nesses and 1 will go on the stand my
self and my testimony will probably
require days time ---
What the Defense Contends.
Afthr the state rested yesterday,
Judge M. A. Spooner entered a
motion to discharge the defendant
and dimiss the proceeding on two
principal grounds, one that the in
dictment is fatally defective and the
other being that5the testimony offered
by the state did not prove or show
facts sufficient to constitute azpublic
offense Under these points, it was
contended that not only was the in
dictment inherently defective under
any definition, either at common law
or under the statute of the crime to
attempt to commit arson, but was
defective because it failed to contain
allegations which were necessary in
order to make it sufficient under any
definition of the crime. One of the
points urged against tic Indictment
and as to failure of proof was the
claim made that under the peculiar
wording Of the statutes of this state
relating to accessories that, while one
might be an accessory before the fact
in the commission of a crime, one
cannot be properly charged with be-
ing accessory before the fact in the
case of a mere attempt to commit a
crime
cit will be remembered, said
Judge Spooner, chat III the indict-
ment in this case, DR.. Dumas is
charged with the offense of an at
tempt to commit arson in the third
degree, being absent at the time of
the commission of the alleged Of
fense." $751; -.:- o.
After having devoted more than
an hour and half to the considera-
tion of the question of tie sufficiency
of the indictment and tie discussion
of the proposition that there is no
such thing as an accessory before the
fact in the case of a mere attempt
to commit a crime, defendants coun-
sci was about to take up and present
a long line of authorities to sustain
the claim that under the proof made
by the state in the case before it
closed there was nothing to show
such an overt act as would amount
in law to an attempt to commit the
crime charged, when court adjourned
yesterday Afternoon until 9 O'Clock
this morning. *ss
The States Position.
At the conclusion of Judge Spoon
er's remarks, Attorney Mcdonald
arose for the state and upheld the
Indictment, contending that there
was good legal reason why the case
should be given over into the hands
of the jury.
Attorney Mcdonald said:
'sThe Indictment in this case is
based upon the provision of our stat
ute which makes it crime for a per-
son to set on fire or burn building
of another and the statute which pro-
vides in substance that any person
who does an act tending to the com
mission of an offense punishable by
law but which is. for some reason not
due to his conduct, unsuccessful, is
guilty of an attempt to commit that
offense, and the statute which pro.
vides that any person who aids
abets, counsels, encourages, pro.
cures or employees another to com
/ nit an offense is guilty as princi.
pal.
Eve contend that if Davis and Be.
| han had set the building on fire. the,