The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1912-05-11
Supreme Court Holds That
the Lower Tribunal Conf
mitted an Error.
TECHNICALLY IS BASIS
Doubt IS Raised as to Whether
Defendant Can Again
Be Tried.

The supreme court of Utah handed
down an opinion Yesterday reversing
the judgment of the district court Of
Jusb county in the trial of II. Gustal-
di. a saloon man of Eureka. who killed
w II. Palmer of Salt Lake City on
January "a, 1911, and who was freed
by the lower court on technIcalIty.
The district attorney is authorized in
the opinion to reinstate the suit, but
the defendant having once been in
jeopardy, it is regarded as doubtful if
conviction can now be secured.
The case attracted much attention
throughout the state. Gustaldi sus.
peetcd Palmer. a travelling photogra-
pher, of improper relations with Mrs
Gustald and shot him down as he was
about to board train for this city.
After a preliminary hearing. the case
was taken up by the district court,
Judge Joshua Greenwood presiding.
After jury was empanneled Attorney
o. W. Powers Of Salt Lake, represent
ing the defendant, proved that the stem
ographer who officiated at the prelim-
mary hearing bad not been duly ap-
pointed, although sworn in. He con
tended that this fact invalidatcd the
preliminary hearing and as the consti-
tuition provides that district court car
take mp a homicide trial only after a
preliminary hearing in a Justice court,
that Judge Greenwood s tribunal was
without jurisdiction.
Defendant Discharged.
Judge Greenwood sustained this con-
tention, discharged the jury and dis
missed the defendant The supreme
dant should have made his objection
at the time of the preliminary hearing,
failure 10 object at that time operating
as waiver of his rights 10 do so. Since
the constitution gives the accused the
right TO waive the entire proceedin gS
at a preliminary trial. the right to
waive any portion is given him.
The court rules that the district nt-
torney 'may take such action as he
deems legal and proper The defen-
dant is Informed that he has the legal
right to ''make his objections aud save
his exceptions to any proceedings that
may be taken against him and to pre-
sent the record TO this court for review,
and when such record is presented we
may then legally pass upon the legal
effect TO be given the Judgment in this
case as well as examine the legality
and regularity Of any further proceed
ings that may be taken therein"
Three Other Opinions.
Several other opinions also were
handed down. A recent liquor election
held in Beaver City is declared to be
valid in the opinion in the case of j.
W. Harding and Isadorc Leasing
against Beaver City. The plaintiffs,
who were saloon men in that town, con
tested the election on the grounds that
the ballots were not properly numbered,
The lower court decided against the con-
testants as did the higher court
The district court g Judgment in the
suit of Helen NJ, Holman against the
Dcseret Savings bank is affirmed in an
opinion rendered yesterday. Plaintiff
sued for S49S.7l On deposit in the bank
to the credit Of Carrie l.. Eslinger, de-
ceased, which amount plaintiff claimed
TO have been given her as a present
The judgment in the lower court was in
favor of the defendant.
Summit county, which won its case
in the lower court when sued by Joseph
Williams for the refund of the amount
of saloon license, was again the vic
tor in the higher court, which sustained
yesterday the district court s judgment.