Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-01-24

.NoeO ~ SVe t"~1o"V "'o~N'
T TRIAL BEING ILLEGAL AND
NE COURT.
served from August q, 1901, to
March q, 1865
The second trial commenced at
Langdon November 3, 1903, Judge
Cowan of the Second judicial district
sitting upon the case upon the writ
ten request of Judge Kneeshaw of
the Seventh judicial district. The
defendant was represented by Attor-
ney Tracy Bangs OF Grand Forks, w.
E. Purcell of Wahpeton, and Myers
of Grafton, while the state was as
sisted by Frank NJ. Nye, now United
States congressman from Minnesota.
On November %, 1908, the Jury re-
turned q verdict finding the defend
ant guilty of murder In the second
degree and fixing the penalty there
fore at seven years In the peniten.
tiary. The court, however, refused
to accept this verdict and returned 1t
to the jury, ordering them to care
fully consider the instructions given
by him as to the law In the case and
to return a verdict accordingly, and
that they should not find or agree
upon any other verdict. Thirty-nine
hours after the court had refused to
accept the first verdict returned by
them the jury again returned to court
and stated that they were unable to
agree upon verdict. The court
thereupon discharged. them, remand.
ed the prisoner to Jail without bail
and ordered a new trial.
The state then took change Of
venue from Cavalier county to Walsh
county over the objection of the de.
PENDANT. The third trial commenced
at Grafton at the May term Of the
district court of said county, 1904.
Attorney Frank NJ. Nye again as
sisted the state in the prosecution
and Attorneys Bangs, Purcell and
Meyers appeared for the defendant.
The Jury returned verdict Of guilty
of murder in the FIRST degree and
fixad the penalty ae'aiife imprfson'
ment. On June 49,. 1904, Barry was
again sentenced to the state penften'
tiary at Bismarck for the rest Of
his natural life, and Immediately con-
veyed to the penftentiary by the sher'
If of Walsh county and delivered to
the warden. and commenced to serve
his sentence.
He again prosecuted an appeal to
the supreme court from his third
conviction and sentence, the supreme
court sustaining the appeal. It held
that the proceedings OF the district
court were without authority Of law,
and found that the only valid verdict
rendered in the several trials was the
one of November %, 1903, and furth.
er held that the district court should
have accepted that verdict and rend.
cred judgment for the minimum SEN
tence provided by law for murder
in the second degree, towit, ten
years. It also held that although
no judgment had been entered on
said verdict, the defendant had been
restrained of his liberty under it and
therefore the time for his legal i'm
prisonment should date from N0vem.
Der %, 1908, and modified the judg.
ment of the district court according.
ly, ordering the district court to mod.
ify it's judgment so that the time of
service by the defendant would be
the same as If sentence had been
pronounced upon the verdict returned
November %, 1908.
The district court, however, failed
and refused to so modify its judg-
ment, and in the spring of 1907 the
defendant took out writ of habeas
corpus in the supreme court, alleg-
ing that he was restrained from his
liberty by F. o. Hellstrom, warden
of the state penitentiary, contrary
to law and to the constitution of the
state of North Dakota and the con-
stitution of the United States. and
attacked the judgment as illegal and
void. Ex-Attorney General McCue
acted as attorney for the state. But
the supreme court held that the mat
ter complained of could not be raised
on writ of habeas corpus, and
quashed the writ and remanded the
prisoner to the custody Of the ward
en-.
Thomas Barry of Langdon. a broth.
er of the prisoner, then came to Bis
and engaged the law firm of
Niles 4 kohel to represent the pris-
oner and do what they could for him.
The law firm after looking into the
details of the case thoroughly, de-
cided that the proper way to bring
''D the question was by a writ of
rabeas corpus. On January 10, 1911,
then petitioned the district court of
Rurleigh county for writ which was
issued on that day against F. o. He'll.
'trom, warden of the state peniten.
fisry. respondent. and returnable be-
fore Hon. ". H. Winchester jan
lary %. 1911.
Warden Hellstrom made returns on
''!d day to the writ. bringing the
prisoner, William Barry, before the
court. The respondent was repre-
Sented by che Of the assistant at
orpeys general. and after hearing the
arguments in the case, the Judge
handed down a decision as noted in
preceding paragraph and set the
prisoner free.
Barry and his brother will remain
IN the city for q day or so and will
hen go east. Messrs. Niles and
koffel who have conducted the case