Show I THAT WRIT OF MANDATE Attorney Whittemore and Judge Dey Make the Arguments TAKEN UNDER ADVISEMENT SUIT GROWING OUT OF AN ALLEGED ALLEG-ED BREACH OF TRUST Brought By Susan A Strlnsham Against John StriiiRham Trustee Ernest Oliver Gains His Liberty Olvcr By Virtue of a Writ of Habeas CorpusShort Rulings of the Dis Corpus Rulngs trict Court Probate Orders The petition of County Attorney to Whittemore for a writ of mandate the compel Justice Harvey to permit petitioner to take charge of the prosecution pettoner pros-ecution in the case of L C Davis for charged with perjury came up hearing before Judge Young yesterday forenoon The public is already familiar famil-iar with the circumstances of the case the petition for the writ of mandate and the answer having been already published in the Herald Shortly Davis was charged with perjury per-jury alleged by Joseph R Morns to have been committed while Davis was for the prosecution in the a witness prosecuton bribery cases against Herman Bam berger and Joseph R Morns The county attorney when the case against Davis came atorney u before Justice Harvey refused to prosecute declaring there was nothing in the charges and asked that Davis be dismissed Justice Harvey Har-vey refused to dismiss and appointed Judge Dey to prosecute Then the county attorney changed his mind and demanded that he be allowed to take charge of the nrosecution This Justice Jus-tice Harvey refused to do for the reason rea-son that Whittemore by his conduct himself from acting as had disqualified himsel actng prosecutor in the case and that the court had already appointed another attorney to prosecute The justice had no objection to Mr Whittemore assisting assist-ing in the prosecution but declined to give him full charge of it Whittemore then made application to the district against court for a writ of mandate Justice Harvey Justce C County Attorney Whittemore opened the proceedings before Judge Young by reading the petition the answer and the record of proceedings before Justice Jus-tice Harvey and then proceeded to argue that the justice should be guided by the county attorney and should not have issued the warrant withou his consent The county attorneys duty was a much to protect the public from unjust prosecutions and prosecutions from personal animus as to prosecute guilty people giy The act of the legislature Mr Whit temore contended placed it entirely within the discretion of the county attorney at-torney who should be prosecuted and who should not Promiscuous arrests and prosecutions put great expense on the state worked an injustice to people and seldom resulted in convictions I was necessary to have some one to guard the state treasury from those who would squander the funds by ill advised prosecutions and that same guardian was the county attorney Mr Whittemore complained that he had been ousted from his office he the duly elected county attorney had been ousted by a justice of the peace not only ousted but his successor had been appointed and had qualified JUDGE DEYS CONTENTION Judge Dey on behalf of the defendant defend-ant argued that mandamus was not the proper remedy also that there was no law requiring the justice of the peace to consult the county attorney before issuing warrants of arrest Counsel also held that the county attorney at-torney had disqualified himself as a prosecutor and placed himself in the position of a witness for the defense He said he was personally cognizant of the charge made knew there was no foundation for it and that it ought to be dismissed and very properly in the first instance refused to prosecute but later comes along and says notwithstanding notwith-standing that he is personally cognizant cogniz-ant with the facts in the case and holding the views he says he does that it is his duty to prosecute A judge wouldnt sit in a case in which he was personally cognizant of the facts Can the county attorney have a greater privilege asked counsel Counsel then went on to say that Whittemore had told the complaining witness to make his complaint before the grand jury which was eminently proper but when the complaining wit ness went before that body Mr Whit temore induced the grand jury not to take up the investigation by stating to them that Davis wanted a public preliminary hearing and the matter was already in the hands of the justice Counsel couldnt understand the county attorneys double position but was of the opinion that instead of doing his duty he was shirking it Counsel thought that 11 Whittemore was in every was disqualified from taluhg charge of the prosecution and it would be wrong to permit him to do so Mr Whittemore briefly replied referring refer-ring to the enlarged powers conferred on the county attorney under the state constitution He asked the judge 10 decree that all criminal prosecutions in future be started with the advice and sanction of the county attorney only He thought it was very wrong to arrest Davis who came here a a witness for the state because it would have the effect of preventng other witnesses from coming here to testify unless they were guaranteed beforehand that the person they came to testify against would be convicted Judge Young took the matter under advisement i Alleged Breacli of Trust Susan A Stringham has entered suit in the Third district court against John Stringham trustee of an express trust alleging that on May 1 1893 the plain tiff and others conveyed to the defendant defend-ant certain real estate in Salt Lake city to hold in trust for the purpose of raising by mortgage or otherwise 700 and costs to repay the plaintiff for money advanced by her for taxes or assessments as-sessments on the oroperty and further to pay the plaintiff 50 a month and execute to her a life lease of a part of the premises and to sell the balance and invest the proceeds for the benefit 1 of the plaintiff and others I is then alleged that defendant has failed and refused to carry out the terms of the trust but has raised 6800 on the premises and used the money in jjaying expenses and bills not contemplated contem-plated by the trust agreement and m violation of plaintiffs rights and that there is now due plaintiff under the terms of the deed of trust 1600 also that the plaintiff is aged and has no means of livelihood except her interest inter-est In the trust estate wherefore plaintiff plain-tiff prays that defendant be required to execute the trust and pay the plaintiff plain-tiff the 1600 owing and in future provide pro-vide for the payment to her of the 50 a month as agreed Liberated on Habeas Corpus Ernest Oliver who was fined 10 and costs for exhibiting a deadly weapon byJustice Holt of South Jordan and on account of nonpayment of the fine was Imprisoned in the county jail made application before Judge Street for a writ of habeas corpus alleging that he was illegally deprived of his liberty for the reason that the judgment did not provide for imprisonment if the fine was not paid The fact was admitted released ad-mitted and the prisoner was at once Short Orders J 11 Trenholm vs Franklin Fire Insurance In-surance company demurrer to complaint com-plaint overruled and five days allowed to answer Central Trust company Kruckerlis cher Trust company and Thomas Marshall Mar-shall trustee vs Utah Central Rail way company ten days additional time allowed to answer amended complaint Mary E Smith vs Salt Lake City Railway company motion for judgment judg-ment against sureties of defendant partly argued and continued stay of proceedings granted till April 1 F F Marohn vs A J Oliver report of referee confirmed James Dunn vs Tooele City transferred trans-ferred to Tooele county Thomas Mayne vs 11 Fitzsimmons motion to dissolve attachment partly argued and continued W D Davis petit juror excused for the term Carey Lombard Lumber company vs J H Heron et a1 argued and submitted sub-mitted In the matter of the mater guardianship of Ernest I Young et al minors appeal from probate court partly heard and continued till Monday Probate Orders Estate of Robert B Sneddon deceased deceas-ed hearing on petition for final distribution distri-bution partly heard and continued till next Saturday Estate of Caroline Seddon deceased Thomas J Seddon and Emily Condie appointed administrators on filing bond in the sum of 600 Estate and guardianship of Edwin J Hicks an incompetent person Joseph N Hicks appointed guardian on filing bond in the sum of 3000 |