The Coconino sun., 1921-09-16

not and that he preferred a lighter degree. V s
 An affidavit from c. B. Wilson cited the refusal of Sheriff Campbell at the preliminary hearing to give up any information he had received from the factory regarding the disposition by the manufacturer of the automatic gun Nash claimed up to that time was the one that he had taken from Schwab after he killed him.
 An affidavit from J. c. Nash, father of the defendant, said that following the preliminary, where Nash had ex- amined the gun above alluded to, c. B. Wilson had told him that Harry Nash had told him that the gun was not, after all, the one he had taken from Schwab and that defendant then real ized that the Schwab gun was the one he had traded to "Hobo;" that he, J. c. Nash, then hired detectives to To- cate Hobo" or Crisp, through the lat ter hoping to locate "Hobo," but fail ed to locate either, alleging belief that his failure to locate Crisp prevented his finding Hobo" in time for the trial.
 An affidavit from Wayland Crisp, of Keams Canyon, alleged that when he came to Flagstaff Sheriff Campbell asked him to go under an assumed name while here, which he did, using the name "W. A. Hill"
 A Joint affidavit from c. B. Wilson and Paul w. Schenck recited the dis covery, through Clyde Hunnicutt, that Ben Rectdol might be material wit ness in proving that the murdered man had gun; that they asked him to come here from Kansas to testi- fly; that he agreed; that Deputy Sher- if w. M. Rudd got on the train on which Rectdol was coming at Gallup, that Rudd asked Rectdol to describe the man who had tried to trade his partner, Carter Joy, gun on or about the time of the murder; that Rectdol did so in general way and Rudd wrote down the description in book.
 :, After Mir. Harben's brief reply to the arguments of the defense in which he, as above stated, read the affidavits of Bailiffs Hicklin and Allsup, he said that any charges made against the sheriff and county attorney by defense would be ignored as those men were able to take care of themselves.
 Then the judge, briefly and decisive ly, took U the various affidavits and eliminated them as having any in fluence on the question of new trial. He said he had to some extent antici- pated what the arguments would be.
 Of the three venires, he held there was no error. Of the three jurors permitted to qualify over challenge of defense he said none of them had fix ed, unqualified opinions, hence it was no error to permit them to qualify.
 Regarding the "affidaviting" jurors he cited a California supreme court case in which it was sought to be shown that the statement made by one juror to another that manslaughter was punishable only by a few months in county jail, had caused several of the jurors to vote for manslaughter, the contention of the plaintiff was not maintained by the supreme court, which ruled that "post-mortem" affi- davits of jurors could not be consider ed unless they related to the fixing of a verdict by chance.
 inion that if the verdicts of juries could be impeached later by one or two jurors, then the jury system wouldn't amount to much.
 In alluding to the affidavits of Strange and Chestnut he said that they had taken paths not to be in fluenced in their verdict by other jurors and that if they had violated their paths the court was not re- sponsible.N As for Udine's affidavit, he said that he couldn't understand why it was introduced and wouldn't at tempt to analyze it.
 Regarding James statement cover ed in Markley's affidavit, the judge said he had never refused to let the the jury have a reading of Best's testi- mony and that it would have been read if they had wanted it.
 Of MT. Wilson's affidavit concerning Campbell's refusal to tell about the gun at the preliminary, the judge said that was the sheriff's affair and was not pertinent to the motion for a new trial. He ruled J. c. Nash's affi- davit not pertinent. He said he did, mt know whether the sheriff did or did not conceal Crisp and that so far as he, the judge, was concerned it didn't matter.
 Of Rudd's talking to Rectdol on'the train, he said he failed to see where it was alleged that Rudd tried to in fluence witness in any way.
 Then came the pronouncement of sentence, followed by the final spar ring by defendants counsel for minor advantages.
 Defense first filed notice of appeal to the supreme court.
 Attorney Schenck asked the judge to grant certificate of reasonable ground for appeal" alleging as reason for asking it that if it were granted it would permit. the prisoner to re- main in the county jail here until af- ter the state supreme court had heard and considered the arguments to be made before that tribunal for a new trial.
 Schenck said defense attorneys wanted to spare Nash the ignominy of the penitentiary until after it was fin -Il- ,x%l i, h,l