The Washington times., 1912-06-07
cannot QUALIFY
MURDER VERD|CTS
IN THE DISTRICT
Juries Denied Privilege BY
Supreme Court In De-
cision This Afternoon.

District of Columbia juries are denied
the privilege of qualifying verdicts of
hrst degree murder by specifying that
the death penalty shall not be imposed,
by a decision today Of the Supreme
Court in test case brought by Arthur
johnson, colored man, sentenced to
the scaffold. A dozen other prisoners
awaitin execution and trial are af-
fected by the ruling. Johnson's con-
viction stands.
Other Cases Involved.
The Johnson case indirectly involves
the fate of Matte Lomax, the colored
murderess, condemned to die for the
murder of her husband, Cecil Lomax,
and also the sentence of James II.
Smith, alias John Kabusta, the Chicago
murder suspect, who was given the
limit-thirty years in the penitentiary-
on his conviction of assaulting and
robbing Morris Bennett. In each case
the question of the application of the
new penal code is involved.
President Taft intimated that should
the court Of last resort find that a jury
in the District of Columbia can return
a qualified verdict in first degree muI.
der cases, then Matte Lomax should
not suffer the death penalty, as she was
IlOt given IHe DeneIll Oh SuCH COnSti uC'
tion of the law at her trial. However,
the qualified verdict" contention was
not raised at the trial.
In the case of Smith, his attorneys
charging assault to kill'' was drawn
under the old District code and not the
new code. and, therefore, should be
quashed. The old code provides PEN
the aim of Smiths counsel. Attorneys
George c. Shinn and Claude owen, was
to lop off that much from his sentence.
Struck With Iron Rod.
johnson was convicted of the murder
of John Ofenstein and sentenced to
death on the gallows He killed Ofen-
stein by striking him over the head
with an iron rod in front of the latter s
blacksmith shop on the north side of
New York avenue, between Sixth and
Seventh streets northwest, in December,
1910. He was tried before Justice Dan
Thew Wright, who refused to instruct
the jury that 1t had the right to quail
fy its verdict by adding the words
without capital punishment" in the
event of conviction.
Three reprieves have been granted to
Johnson after he was sentenced to die
on the gallows. Each stay of execu-
ternine the legal differences in the case.
- An appeal was first taken to the Dis
Tr 1rict Court OF Appeals by Attorney
eooTes sver NJ saker w hef for the
error were contained in the appeal. one
being that the defendant was not ready
Tor trial, and the other that the jury
was not instructed relative to its sup
posed right to qualify the verdict.
Attorney Baker argued that the act
fGf 1ssS. providing for qualified verdict
strfct had never been repealed.
Want Matter Settled.
Because OF the difference of opinion
then existing among the justices of the
District Supreme Court on the qualified
verdict question, two holding one way
and another the other way. Chief JUS
tice Seth Shepard, of the Court of Ap.
peals. asked that Daniel w. Baker
former United States Attorney appear
'as friend Of the court" and pre-.
sent still another angle of the contro.
different phases could be determined
The former District Attorney urged
that section $50 of the new penal code
permits the jury to add the words
Il without capital punishment to a ver-
dict of first degree murder. He made
the same argument before Justice An
derson in the case of Bass Matthews,
and his view was accepted, and later in
slayer, he persuaded Justice Barnard
to the same opinion. Both Matthews
and Macdonald escaped the gallows on
the technicality.
Sustains Justice Wright.
Thus when the question was put ur
to the District Court of Appeals, JUS
tices Anderson and Barnard held that
a qualified verdict was possible and
the contrary view was taken by Justice
Wright. The Court OF Appeals sus-
ttained Justice Wright and reversed the
other two members of the lower branch
Owing to the importance of the point
involved when counsel for johnson took
the case to the United States Supreme
Court. the Department of Justice di
rected that Solicitor F. w. Lehman
take part in the arguments.
The decision handed down today def
nitely fixes the status of murder case.
in the District. United States Attorney
Clarence r. Wilson will now rush sew
eral pending cases to trial, among tht
number being that of Tony Milano, the
italian, charged with numbering thu
Smith boy and then setting fire to hi:
body. Attorney James Francis Kelly
chief counsel for the accused shoe
maker, stated today that he is ready
g.