Arizona republican., 1913-02-06
Arguments on Motion in Case of William Faltin.
 It Will Be Granted Or Day of His Death Fixed Next Saturday.

 tinuance was taken at that time until yesterday afternoon, when the motion was argued by MT. Struckmeyer for the defense in an address of two hours and a half The new trial was asked for on seven different grounds. One was that the court had erred in the instructions to the jury, in with holding instructions that should have been given; that the court had erred in overruling the challenge of the defense against the entire special venire and had erred in overruling the challenge for cause of Juror Lewis
 Another assignment of error was the commitment of MT Struckmeyer for contempt and the conduct of the court throughout the trial. It was with some embarrassment, Mr Struckmeyer said. that he brought up this matter. Lastly. the new trial was asked for on the ground that the verdict of the jury was contrary to the law and the evidence
 MT. Struckmeyer addressed himself to this last ground first and at the greater length. He devoted four tifths of his time to it. He pointed out that the only evidence of de- liberation, assuming that all the ether evidence of the state against Faltin was true. was the testimony of the 12-year-old Lima Pinkerton, who said that she saw Faltin digging q grave on the Saturday before the murder. She had not known at the time of the digging that it was grave and that idea had come to her only after the discovery of the body Cf Peterson in that excavation. There was, said the attorney. no ether evidence of deliberation on the part of Faltin. assuming that he had murdered Peterson. and against this was the unreasonableness of the theory that the defendant would dig grave by the roadside for the body of a man whom he intended to mur- der at some time in the future
 The alleged error of the court in instructing the jury was taken up next. The particular objection to the instructions was the refusal of the court to define murder in the second degree and justifiabIe or excuable homicide. This matter had been threshed out during the trial when the defense sought to introduce tes- timOny to show that Peterson was man of quarrelsome disposition. the evident purpose being to lay the groundwork for a plea of self -de- fense. The testimony was then eX- cuded on the objection of the state on the ground that the plan of de- fense already advanced barred the defendant from putting forward any other theory.
 MT. Struckmeyer yesterday alluded again to the recent. decision of the supreme court in the case of Stokes from Gila county in which first de- fense of accidental shooting was in troduced Testimony later was of fered that the dead man had mada threats against the defendant This testimony was ruled out and the lower court refused to instruct the jury on that point The supreme court for that reason ordered a new trial.
 Concerning the challenge of the venire which had been overruled MT. Struckmeyer said that it was the evident purpose of the law that in murder cases there should be a
 
 that in matter of so much impor tance the legislature had endeavored as far as possible to eliminate the human element in the procuring of a trial jury.
 As to the challenge of Juror Lewis it was found that MT Struckmeyer had been under a misapprehensiOn. There were two members of the venire of that name and one of them had been objected to by the defense | for cause. It was shown that the juror to whom objection had been made had been removed.
 l The next ground for a new trial | taken up was the admission of evil dence obtained by the questioning of l Faltin by officers after his arrest | and by an examination of the per 1 son of Faltin by Dr. WYlie for marks 1 Of recent injuries in which it was i incidentally brought out that he bore old scars. from which the jury had been permitted to infer that he had been involved in former bloody con | flicts. The attorney for Faltin dWelt especially upon the testimony of the officers that they had told him ii he would tell them where the body of Peterson was concealed it would be better for him.
 ! Then came the allusiOn to the con- tempt matter The objection to tha was that it put the counsel for the defense in an improper light before the jury It was necessary, said the attorney. to offer a defense of hi: conduct in that case, for if it hat been contemptuous he would have been properly punished and his ellen would have had to bear the brun of it. But if his conduct was no contemptuous, the fact of his pun ishment would still be influentia , with the jury It would still appea that he had tried to obstruct tn course of justice.
 He would insist that his conduc had not been contemptuous, he hal merely declined to sit down whel the court told him and he must stil believe that no man has a right t order another to be seated. In tn course of the discussion of this as