Show POINT SCORED BY ORO BROWNINGS District Attorney With Wi- With With- Withdraws draws Statement By Chief Witness S Special Dispatch SALT LAI LAKE n Nov Kov 14 rhe 1 ot or ORd n and aBJohn John were considered co as baying scored cored a victory victor today at it their trial when District Attorney E A Rog- Rog Rogen Rogere ROIen ere en voluntarily 1 from the court record the tho th of ot Ser Ser- Sergeant r- r geant ant Lester L t r Wire relating to the alleged ed dying declaration made by Benjamin F Ballantyne Before Ballantyne was waa taken talc n to toa t a hospital he h Is la said aid to havo have de- de d clarf I 1 wan wanted d to Uve but they the wouldn't let l t me nr The Tho Th state stat seeks to show how that when Ballantyne made this statement he h knew he hw wee We dying Such a statement mado by a dy- dy dyIng dylas Ing person who knows know he h Is la dying d can be lr admitted as a evidence where a statement mAde under und r other con con con- conditions would not be b admitted Attorneys Attorney for tor the th to show that th t had bad bano no reason rea on at the time tim h hi hn made e the thic statement nt to believe O beli v his hound wIt wn fatal WN The Th statements of ot Wire were by Rogers Roe r when wh n the th prosecuting attorney hem was e unable to to h the testimony of J T A AJ ert It had been the understanding under- under standing that Erbert Egbert had bed asked now How do d you ou feel feel feel- n had about abon wanting w to live but they wouldn't t let me This morning Attorney Marion Marlon- Marioneaux eaux aux chief or of o counsel coun cl for tor the Bro nl f asked aked that Egbert EIbert be placed on the stand tand The judge consented The state tat seeminglY r was w reluctant The Th attorney at- at torney tompy said ald Elbert Egbert had not been beel bc Ir Ive I've subpoenaed him paux eaux said saM Egbert was sent Bent ent for Then Rogers Ro eP asked for tor a e confer confer- conference conference conf r ence with Ith Egbert At Its conclusion conclusion sion Rogers I oBera announced to the tho th court that he ht wished wl ed to withdraw statements with retard regard to the alleged all re dying declaration This Th Is I 1 taken to mean that the Is i unable to prove with Ith Wire one of tit its lt U principal witnesses e or Egbert that the th statement made y t-y Ballantyne was wa made under dr- dr which would permit of ol Its admitted u as a a dying ln d-ln declaration decla- decla d ration OTHER OTHIR WITNESSES The state tat howe T er still has hf the testimony of Dr J J and an ant 11 t ot or Officers Riley and rs RoS nog r E-r rs to f be b used u ed In an effort to how o believed he h wu waS dying when he h made the alleged accusatory statement ment From rom present indications all evl- evl evidence dence den possible will be b submItted to 10 tho the court u se a to the tho th circum- circum circumstances stances surrounding nun the th alleged dying statement Then arguments arrum as to whether It tt shall hall pe e admitted as evidence before the th Jury will be b made mad by counsel for tor state and de- de de-cn de ff before the judge finally passes on the th question The legal leral battle batti lines and tenta- tenta the method of ot procedure were ere mapped out in advance by counsel on both sides aides during the th afternoon session Tuesday In preparation fora for tor tora foia a closely contested fight on admit admit- ot of Benjamin B F T Ballantyne alleged dying wouldn't would t let 1st me to live HT but they thy Every ery atom tom ot of t fore torce fore would bo be b put behind the th arguments attorneys indicated before the th question Js is given riven over to Judge M Lt li Ritchie to District decIde DIstrict Attorney A A E II ROI r admit that no and nA his hie associate small mall portion of ot the th whole fabric around aroun prosecution Is woven ot of the th this statement t whispered ruby ed toD to police D Detective John 1 bert by the he man manfrom who Is edl alle-edl alle Iwo to have hav been dying from a buirt wound through his hi throat Counsel for Marriner r A Bro B and nd John B will ll ad- ad admission d d theIr Arguments r um nt against a renew of ofa mission of the u as that hav- hav havIng dying man these arguments a statement opt o out at the Ing ln kept the th preliminary trial STATEMENT WIT WIT- The statement together r with wit supporting evidence as all culled from froma prepared by Police Sergeant a Ser ant Lester oter F Wire Win has been bee drAwn by the attorneys for tor the state stat In accordance with Ith Ith the th re- re request of ot the tho court and Is In to pos poe possession pos Quest court reporter It I session of ot the th such auch will wilt not be b made mad public until time Urn os ae a Judge has hae rend rend- prod fred bis hili decision as os to Its admissibility In eVIdence the thi In support of the th statement submit and an state stat hay has ha proposed to the court has hos agreed to receive the additional testimony of 0 testimony of police Officers Wire and Julian Riley and anth A H Rogers of ot Dr John J Gal Gal- Galligan the s statements ligan assistant nt city DY physician as this In evidence When Wh n already Seen In been submitted testimony has een emitted behalf of the th state the he tn witnesses examined cross by ne for fol forthe the defense and tho t e ar arguments ments will be beIn bein Ritchie Judge then made mad not whether or position to say In ft a and the purported d dIng Ing statement under which It the circumstances made mad shall g ro go before the tb jury was Twice during the th proceedings while was W excused Tuesday the th jury matters metters pertaining to th the statement were wr before betor the t th coun cou I sere ere Iere that at least one day would I testimony be b consumed In further before and arguments by counsel I Is submitted to the the question court for fr a decision PROGRESS J 1 Good progress has marked the ine trial so far In that during competed two Y dl d y the th state stat has ha completed the th Introduction of testimony byone byone by Important wit wit- witnesses witnesses wit wit- one on of ot Its most roost Wire After Atter a a Detective brief nesses fleeces opening statement by Dis- Dis District District Attorney Rogers Refers at the th openIng open open- e fag Ing of court on Tuesday the th stand to summoned Wire Ir was as and gave lave the th g gen ral history story of ot the ot of shooting from the th standpoint In the th case He H police as 1 as ac back back participation on the th stand from time timeto to time tim during the th afternoon to toa supply supply additional additional details and to lay laya a 0 foundation tor for arguments on nn the alleged dying statement At the th opening of the afternoon the th mars s attorneys attorney sum sum- summoned summoned mooed Dr to the tho th stand the of or disclosing for the th purpose the th wound from nare of Ballantyne B is alleged to bave a died This Thle testimony was given In the presence of the th jury jur In crisp brief statements statement the th assistant city elty physician answered all questions without a moment s hesitation DOCTOR EXAMINED In response to questions by Dis- Dis District District Dis District Attorney Rogers Refers the th ph phi phi- phial clan al- al clan said he heas h was sae summoned to the Holy Cross hospital on the th after after- afternoon afternoon noon of ot April 9 reaching the th ward wardin ard ardIn In which Ballantyne had been tak- tak taken taken tak taken en about 2 2 20 30 20 0 o'clock What was his condition asked the th attorney The map man was as dIng d said thew the then w What as aas the unusuAl feature 0 regarding his condition man was wa let sound Round through the th throat What was wa the th course of ot the I bullet T The Til bullet passed through the left jugular vein the th windpipe and the muscles of ot the neck and shoulder shoulder shoulder der Its direction was as Inward Inard and downward do Dr Galligan then described the operation operation which he h performed In Inan inan nn an effort he h declared to S1 ease sar e Bal Bal life He made mad an Incision In the tb windpIpe and Inserted II a Jacketed I steel jacketed tube tub which permit permit- permitted permitted permitted ted the he wounded man to breathe easier He H also l o added that Ballantyne Bal Bal- Ballantyne Bal died at the Holy Cross hos hoe hospital hospital pital at 8 3 10 o'clock on the th evening following the tb shooting In the th at- at afternoon af afternoon On further questioning by coun roun counsel sel eel for tor the state the physician saId that the th bullet passed pa ed through the tho cartilage of ot the th windpipe but that It apparently was vu as not deflected by striking any bone What was wu the th condition ot or theman the theman man when hen you first saw him asked Attorney Rogers Rogera Ile He H naj almost completely am- am as br with great difficulty and bleeding from the wounds caused by the trio entrance and exit of ot the bullet bullet replied the physician CAUSE OF or DEATH What In i our opinion was the cause causo of ot death He H died from fron flooding ot of the lungs with blood the bullet Injury having caused changes chances In circulation circulation tion declared Dr On examination cross by Attorney Attorney Attorney ney Thomas for tor the defense Dr GallIgan said Ballan- Ballan Baliant Ballan t tipe pe was nas as able to speak In a whisper whisper whis- whis per but with great difficulty At- At I ter t r the th operation which w was s com com- comI completed com I about 3 3 o'clock the th witness said aid tho the patient w wa os as able abl to breathe easier but still carried on conver conver- conversation conversation conversation In a II whisper Tho The question of direction taken by the th bullet after It struck Bal Bal- Ballantyne Bal In the th throat caused a n brief clash between Dr Ga and counsel l for tor the th defense The phy phy- physician physician stated that the th course WOOS was straight Inward and downward downard The physician also stated that he had performed the th operation mentioned men men- mentioned men mentioned in the hope hop that It would save en the mans man's Itte lite but that in the lh tow few c case sell ot of the kind In which ho he had operated the lh th patients had died RECOVERY RARE RAnI defense Further questioning by the de- de d I attorney y brought out that Dr had attended from 30 20 to I 40 gunshot cue case cues for tor the th past pat four years and that he h had attended att probably six men who had suffered bullet wounds wound In the tho windpipe and jugular vein vin such uch M es that which caused the tho th death of Ballantyne Persona wounded In such a 0 man man- manner manner manner ner he h said rarely recovered recover d dAt At the tb conclusion ot of Dr Ur Galil- Galil Sans San's ns n's testimony Attorney Marlon Marion Marioneaux eaux tool took up examination cross-examination ot of Detective Wire on such matters as he h had testified to before be for the jury no reference e being b made mad to the purported urD t l dying statement which the witness had brought Into the case cas durIng the th morning see ses- session slon es-slon ton sion Under Und r questioning he h reviewed the response l of or the th officers to the telephone call from the tho th Brownin Browning home the th fact tact that there ther waa was an automobile In tn front of the th h hou uso 9 Continued on ing Follow Ini Page Pace i I i I I POINT SCORED BY Continued from Preceding rage Page I containing who he ho afterward rd 1111 ned was wag Mrs Ballantyne Mrs John M Browning Brol her mother and anda a child chUd The others were either cither on the porch or the thO steps of ot the house added l the officer I c FIRST Who spoke first rt John Brown Brown- BrownIng Browning ing lag asked Attorney Marioneaux No No I think It was WM Judge Reed Reed- Reeder Reed Reed-er er the witness replied Whit What did ho say Ho Ho said I I am the tha one ono who called you vou ou This Is h Mr John Browning and this Is b Mr Marriner My name namo Is Reeder their attorney Mr Reeder a asked ed ed them to come Into tho house the witness said and all went Into the library where the officer said ho he saw a aman aman aman man lying on the floor John Browning said said my brother brother- law brother law In Benjamin F Ballantyne brother I the detective added The Iho 1 hc witness stated that Ballan- Ballan Ballantyne Ballan tyro tyne said nothing and that apparently apparently apparently he was unconscious Did Did you make any test to see ace If ho he was unconscious asked naked At- At Attorney Attorney At Attorney torney Marioneaux No replied Wire The witness said that practical practical- practically ly no Investigation was waa made by himself and fellow officers at that th time because the tho pollee ambulance had h followed them closely and ar- ar ar lived a minute or perhaps a min min- minute min uto ute uto and a 0 halt half after arter they reach reached d the tho Ballantyne home It was deemed necessary he said to get the Injured man to the hospital as soon as possible The ambulance ambulance ambulance lance was In charge of ot Officers Riley RUey and Rogers It developed BOORS c ON OX FLOOR FLOOR- The defense at this juncture brought Into the caso cago a a point which received little attention In tho the pre pre- preliminary preliminary pre preliminary trill trial the fact tact that a a num num- number num- num number number ber of ot books were lying on tho floor bet between een tho the davenport and bookcase a a few Inches from Bal Bal- Ballantyne Bal s feet as ho he lay on his back backon backon backon on the library floor You observed a a number ot of books between the couch and bookcase asked Attorney Mr- Mr M Mar Mar-loneaux r- r loneaux Yes Yos admitted the witness How many books would you any BlY were on the floor Probably throe three or roar foar Did you iou ou pick them thom up No No They were not thero there later wore ware they I No When No were ere they thov picked up 7 1 don t know now It might hale hae hav ha e been the same day or tho the next morning said the detective LOADED PISTOL rIsTOL TOL rOUND this point the exam cross turned to what transpired after atter the wounded man had been remo removed e and brought Into evidence e a horn handled tlc automatic target pistol 22 2 caliber said silil to havo e been In iii Ballant ne s hand at the time the tho fatal shot was as fired tired by Marriner A Browning It Iii It was brought out that the pistol con con- contained con contained tamed a a clip fully Cully loaded with th cartridges hen V you picked up this pistol Isn't It true that the safety was wa ort oft and It was ready reldy for tor instant nt use questioned Attorney Mar ar- ar loneaux les 1 Yea es replied d the witness At the request of the attorney Wire pointed out on the drawing dra of ot th the ground floor or of orthe the Ballant B ne home the tho table near neDr the tho library door or opening on which ho had found the pistol Then the attorney continued Now Mr Ir Wire don t you vou OU re- re recall recall re recall call that something was as said lId re galding this pistol before tho the am- am am ambulance remo removed erl Mr Yes Judge feeder Reeder said sald- said Walt Wait alt Interrupted the tho attorney as he referred to a transcript ot of the testimony at the preliminary hearing I I 1 will ask you Mr Wire lIre con con- continued con continued Attorney Marioneaux It If you ou t sa say Fully loaded Ith the safety off orf ready to go 1 Yes but I thought though I had that th Ill conversation with lIh Judge Reeder replied the witness aptness WOUNDED M lIt MN N I It ItI I was as then brought out that I further con was had tn in inthe Inthe I Ithe the cast room of the house or liv- liv livIng liv living ing lag room John Browning Bro having suggested that the principals and officers go Into that room rom and talk 0 over er |