The Idaho recorder. [volume] (Salmon City, Idaho) 1886-1927, 1915-10-29
GRANTED
NEW TRIAL


nv Buster, serving sentence Of
4 10 to 80 years in the Idaho state
ltentisry for second deg rec lnur-
in the killing OF Henry Brown
the village Of North Fork, Lem
county, April II, 1918, will no re.
"A In the Six tn judicial district
rt, for the supreme court In an
MON handed down last night finds
srsible error in the character Of
evidence submitted preJudicial to
Stsr aud the manner in which
lge J. NJ. Stevens left instruction.
h the jury. 1t reverses the judg-
Mt of the lower court and orders
trial. The opinoin is written by
,tice Bulge aud Is concurred in by
chief justice and Justice Morgn.
uster was charged aith murder
the first degree, but the jury re-
med verdict of second degree
rider aud it was on this verdict
htence was passed. A motion for
" trial was made by counsel for
lster, but was overruled by Judge
eyens. The appeal was taken from
order Of the court on the motion.
The facts leading up to the tragedy
substantially as follows: On the
ght Brown was killed, Buster met
Mrs Allie Agee, at his sisters
ME near what is known as the
nth Fork post Office and shortly
erwards he met her again on the
yhway not far from his sisters
me. In company with Mrs. Agee
her son, Buster walked down the
d in the direction OF the home of
own, meeting the. latter on the
Y.
FRS. Agee testified that she was
king between her son and Buster;
+ her son saw Brown first and |
t Brown was walking towards |
m; tuat they walked along until |
y met him, whereupon Buster
Jped back little so Brown might |
saying at the same time, "eVen-
: that Brown said to Buster, |
AXE a walk. At this command
ppears Buster stepped back a few
IS and Brown raised cane and
n hitting him. AS Buster re.
lted before the attack he said,
ont, Mr.. Brow" several times.
wn, however, kept on shOwering
VS. on Buster, whereup0U the lat
drew a pistol and fred two or
se times, killing Brown. Walter
20, In his testimony, corroborated
above.
, 10 largely upon the adm TIED tes.
ony of one Simon Weese, however,
court reverses the verdict. Weese
jlfied to hHving a conversation
h Buster the daV before ths kill
| wherein he alleged Buster said,
ou are not the only one have
to round up. l have got several
re aud some Of them will get 1t a
an sight worse than you did" I"
After a careful consideration Of
the evidence in this case, !" says
! court, tive do not feel warranted
holding that the declaration as
tilted to by Witness Weese, II made
appellant, was competent proof of
lice or premeditation on his part
take the life OF the deceased. /"
Under the facts in this case we
ak it was reversible error for the
lrt To permit the testimony OF Wit
IS Weese to go to the jury.
n regard to the instructions given
the judge of the lower court to
e jury the supreme court In Its
inion finds that counsel for both
les submitted written charges to
e jury and requested they be given
Judge Stevens. Upon each charge
ssenled the court must i1dorse and
IN its decision. Ii part is given
d part refused, the court must dis
lguish showing by endorsement
nat part of the charge was given
ID what part refused. 1t seems the
wer court pinned the suggested
Iarges with his own charge to the
rs having previously struck out
Irts of the former, to the jury.
his the supreme court finds, vas
ejudIcial to Buster.
THE ninth assignment Of error in-
Dives the insufficienoy OF the evil
'nce to support the verdict and
ldgmsnt of conviction, says the
'urt. From the conclusions
,ached in this case it will be neces'
lry that a new trial be ordered; and
1r that reason we will not further
upon the evidence. On &C
cunt OF error in the admission o.
estimony and in permitting the jury
have possession of instruction
hat che trial court had refused, i
'ecomes our DUTY to re eserse the judg
nent and grant q new trial; aud it !