Weekly journal-miner., 1918-12-25

the wishes of the defense, Lady. it is alleged, having disclosed the exis- fence of a state of mind on his part in reference to the defendant which prevented him from acting in entire impartiality and without prejudice to young Stephens.
 Regarding the courts instructions to the jury as io the defendants men, tai condition at the time of the shoot ing. Assignment of Error No. I in the defendants brief. charges the court with committing prejudicial er- TOT in instructing the jury with re- spect to matters of fact and com menting thereon and giving argu- mentative instructions which would tend to cause the jurors to believe that il was impossible for Stephens to have been suffering from emotion al insanity at the time he fired the fatal shots
 Assignment of Error No. held that inc lower court had committed a gross prejudical error in misdirecting inc jlry as to what constituted mur- der of the second degree in giving the following instructions:
 "The court irstructs the jury that murder of the second degree is the unlawful killing of a human being without malace aforethought. either express or implied, and without de- liberation or reconciliation"
 The above instruction, according to the defense. failed to properly define inc elements of murder of the second degree. manslaughter having been de fined instead. and thereby the jury was prevented from passing on the clements constituting second degree murder in arriving at its verdict.
 Forr of the grounds upon which the defense had based its petition for new trial were not considered by tho supreme court in reaching its de cision to reverse and remand the case for trial. The first assignment Of error had to do with the alleged ir- regular method by which the tales men were selected. The defense charged that inc panels called subse quent to the first one were not re- quired to wait the legal ten-day per iod before appearing in court, but were summoned forthwith" The second assignment charged that the jurymen were brought into court in parties of twos and threes instead of all being called to report at one time. Assignment No. had also to do with an alleged preudicial charge which had been embodied in the courts in- .r-lrs1a tho enth assignment was a general one based upon the assumption that the court had erred when 1t refused to grant new trial at the time such 2 motion was originally filed by the de- fense.
 The crime for which young Steph- ems was tried was committed in Pres colt on April ?, 1918, at which time the defendant shot and killed a ranch hand named Robert Miller in the Bruchman clothing store on North Cortez street. Immediately follow ing the killing Stephens surrendered himself to the sheriff. He charged that Miller had made attempts to separate his father and mother and that the dead man had been making love to Mrs. Stephens with a view of inducing her to elope with him. The story told by the defense ap- parertly did not carry much weight with it in court, and the jury returned a verdict of first degree murder after having been out less than 30 minutes. Stephens was q short time later sen fenced to the Florence penitentiary for the period of his natural life, but an order granting stay of execution was issued by Superior Judge Sweeney shortly after the case was appealed, the court refusing to admit the defendant to bail pending the out come of the appeal, to the higher court