Show V I WAS ANOTHER FIASCO The FytarKone Adultery Case Again Before the Court MARSHALL ADAMS ABSENT 3TO TESTIMONY INTRODUCED AD BOTH DEFEXDAXTS DISCHARGED The Bribery Cases Also Fall to the Ground and George Silks Roe Krnxce anti C J Geary Arc De ularcil Not Guilty Lit ely DIscussion of DIscus-sion Bctwovi Judge lowt rs County Attorney VIilttcmoro and Justice Harvey The case against George Silks Roe Frazer and C J Geary for bribing Marshall Adams the complaining witness wit-ness in the proceedings against H A Fyler and Mrs R A McKone for adultery according to the arrangement arrange-ment was called in Justice Harveys court at 10 oclock yesterday morning and the defendants were found not guilt The adultery charge was then taken up but Adams was not forthcoming and the case against both Fyler and Mrs McKone was dismissed In both cases County Attorney Whit temore appeared for the prosecution and Judge Powers for the defendants BRIBERY CASES Judge Harvey called the bribery case and asked Mr Whittemore if he was ready to proceed Mr Whittemore have not been able to serve our witness with a subpoena sub-poena I am willing to do one of two t things either to proceed with the hearing inasmuch as I understood from Judge Powers yesterday that he desIred to introduce some testimony or I am willing that the case be dismissed dis-missed Of course we have the right and if we in the future feel justified from the evidence obtained that we ue entitled to another complaint we can file it Judge HarveyThat is something I do not know anything about I am not informed as to that Judge PowersThe position I take jour honor is that the prosecution cannot dismiss a case of this kind that it must be determined when the defendants appear for trial You cannot I can-not dismiss and commence over again Judge HarveyI do not think it right myself Judge PowersI shall insist upon a judgment of not guilty in the case It is not right and it is not the law to dismiss it this way Judge HarveyAs I understand it there might be a matter of costs in this case to be determined the complaint com-plaint was sworn to by Mr Paul Judge Powers Well that I do not know anything about Judge Harvey do not know anything any-thing about it either but I have not had any criminal business yet and I ant to get started right Judge PowersThe costs will either be assessed against the people or against Mr Paul Mr Whittemore dont know about that We will go on with this case with the understanding that our friends on the other side introduce testimony tes-timony Judge Harvey I will not let any defense 0 de-fense be introduced here until there is something shown Mr WhittemoreI would like first to introduce certain records while we are waiting for Mr Adams I Judge PowersPerhaps if this is some formal matter bout the records I we can agree on it Mr Whittemore want to introduce the proceedings before Judge Som mers showing that there was a case pending there and Adams was sub poened on Monday that he did not appear I ap-pear and attachment was issued for I him and that he was found in the city jof Ogden and brought in on attachment i attach-ment Judge PowersWe will admit all that those are the facts I Mr Whittemcre then left the room Judge HarveyWhat are you going to do in this case Judge PowersWe are ready This is a misdemeanor the case has been called and we are ready to proceed I 4 Judge Harvey Mr Whittemore wants five minutes I told him I would I wait five minutes but I will not wait any longer Judge Harvey This is a misdemeanor is It Mr Whittemore Yes I do not think there Is any use waiting any longer Judge Powers We ask for a judgment judg-ment of not guilty Mr Whittemore move on the part of the prosecution for a dismissal of the case Judge PowersWe are ready for trial 1 and ask for a judgment of not guilty Ie have been ready for some days Mr Whittemore will state to the court that I have been unable to subpoena sub-poena the witness necessary for the determination of this case I have used I very effort to get him the sheriff has been out for him ever since yesterday morning at 10 oclock It is impossible for the state to make out Its case without with-out that evidence so we do not care to go into any hearing of the case at all and ask for a dismissal 1 Judge PowersIf your honor please it stands exactly in the position as if the prosecution had gone into their testimony and made no case The case is called for trial the defense answers an-swers that it is ready for trial the prosecution have nothing to produce or they produce nothing to sustain the accusation the defense if necessary is ready to introduce witnesses in its behalf be-half although under our law we are not called upon to do so and we are entitled to a judgment of not guilty and we demand that judgment Judge HarveyThat is the disposition disposi-tion I will make of it These parties were arrested twelve days ago and were locked up at night or kept in jail I have no sympathy with guilty I parties < they will get justice from me but I think the defendants are entitled I enti-tled to some consideration and as I I have final jurisdiction in this case I will make my docket up to show and I the judgment will be not guilty in this case I j Mr Whittemore The record will I show the proceedingsthat no evidence j was introduced on the part of the j I people I Judge Harvey Yes and I will rule this yay until I am corrected by a f higher court You are discharged gentlemen I gen-tlemen I am sorry you have been put j to so much trouble in this matter i i i ADULTERY CHARGE i After the disposition of the bribery 1 case the defendants H A Fyler and Mrs R A McKone were called upon 1 to answer to the accusation of adultery adul-tery Both defendants were in court and the county attorney began by saying that he wanted to file a motion I In the case Judge Powers May it please your honor In each of these two cases a I motion is made by the county attorney i i attor-ney to dismiss the sa > me This motion I is made it states for the reason that the justice of this court has I signified a desire not to hear said cases and the state desires de-sires to bring said matter before a court of competent jurisdiction who j I I will hear and determine the same t I submit that the reasons that are sug j I gested here for a dismissal of this case are not sufficient The court can dismiss j j dis-miss this case provided no prosecutor I J appears and the court can discharge the defendants The court can dismiss j the case and discharge the defendants when the testimony Introduced if any I I testimony is introduced fails to show I I to the judicial mind that there is probable j t prob-able cause for believing the parties j I i guilty These are the only two grounds I take It that would justify the court II in dismissing the case The case having hav-ing been commenced before a magistrate I magis-trate the statute makes it the duty of the magistrate to proceed to hear and examine it There is no provision by which it can be transferred to any I other justice or any other committing I magistrate Eleven days ago the I county attorney by his own oath made complaint against each of these parties in this court He selected the forum where I he desired the matter to be examined He could have gone before any justice jus-tice in the city He came before this i court his warrant was issued the i J parties were brought into court they I gave bond for their appearance in the sum of twentyfive hundred dollars I understand that that was asked for by I the district attorney and it was a most unreasonable amount i Judge HarveYI would have reduced I i that upon an application and showing Judge PowersTaken in connection with the precedents already established I I estab-lished in this territory as to the bail I that is usually allowed it was excessive I excess-ive but we made no contest as to the i amount because we were able to give i I that baiL It was spread abroad how I I I ever through the newspapers the j 1 channels through which counsel seems I to delight in trying his cases instead j of in the counts that this bail indicated indicat-ed the extrctne gravity of the case and i the wonderful vigor with which it was to be prosecuted since it had come into the hands of the distinguished gentleman I gentle-man who represents the county and I state in this proceeding PRETENDING TO SUFFER I The defense interposing no obstacles in the way of a full free and complete examination of this case agreed with I counsel for the state that as their witness 1 wit-ness was then suffering or pretending pre-tending to suffer from an al leged poisoning of himself or I i poisoning by somebody else that i t the trial might remain indefinite and without setting until that man could j j i be produced Learning the middle of last week that the man was out and j about the streets and being pressed by my clients for a speedy examina tion of the case I not only once but I twice or thrice called upon the county attorney and asked that the case beset be-set and he informed me that as soon I as he could see this man and determine deter-mine he was in shape to testify that it would be done I informed him that I the man was attending to business at the Dooly block and at other places he said to me that if he could not find him he would issue a subpoena for him and bring him in That was on Saturday Sat-urday the last conversation I had with him and he said we would either take up the case 2 oclock Monday or 10 oclock on Tuesday With my clients I was ready at 2 oclock on Monday I I I came to this court and awaited the advent ad-vent of the county attorney He did not appear and your honor said to me i that you did not desire to try this case for the reason that you were under suspicion Of course I am unaware whence the suspicion comes unless it i emanates from one who after selecting the court here to determine this case I now is interposing this motion stating that he desires to commence the case I I before some other court of competent i jurisdiction If I am right in this what a commentary it is upon the execution I of the laws in this county at the present pres-ent time that the county attorney I who Is supposed to represent the interests inter-ests of the defendants to some extent which is a violent presumption of law in this Instance Judge Harvey interrupting want to say this I made it a rule that nobody no-body need file an affidavit for change of venue in this court in civil cases just a suggestion would always knock a case out of this court and that is one reason why I expressed a desire not to hear this case and why I do not want if VtAP T iL AFTER WHITTEMORE Judge PowersI was about > to say what a commentary it is upon the execution exe-cution of the law that the sworn officer of the state who it is the presumption of the law but a violent presumption I submit in this instance does not desire de-sire any injustice done to a defendant any more than to the people yet now comes in with this remarkable motion manifestly prepared for the purpose of advancing his case in the newspapers one step further tomorrow morning J stated to your honor that I would not consent to any change from this court to any other and I said to your honor that I desired this case set down Counsel Coun-sel did not appear that afternoon and I served notice upon him after hayIng hay-ing obtained a setting of one of the cases I served notice upon him in order or-der to bring him into court next morning morn-ing and induce him to do something in these cases He appeared here and began arguing in connection with the case that had just resulted in a verdict of not guilty the idea of the transfer of the cases It was only the day before be-fore after traveling along the city with his associate in this case he went to another justice in this city and made arrangements with him to take this case and has had information taken ta-ken to him and caused the proceedings to be written up In > a certain newspaper newspa-per to the effect that the court had set this matter very arbitrarily and that justice could not be done to the people peo-ple I object to the motion being allowed and in all seriousness now and that we may be right upon the record in the case of the state against H A Fyler and in the case of the state against R A McKone I demand an examination before your honor this being the court In which the complaint was lodged and before which the parties are at the present time COUNTY ATTORNEY AMUSED Mr Whittemore your honor please I have been somewhat amused to say the least at the very elaborate argument that my brother has made but I maintain that his whole argument argu-ment so far as having any law behind It is absolutely worthless and void He maintains or attempts to maintain main-tain before this court one of the most remarkable positions I ever heard that the state cannot control the prosecution pros-ecution of criminal cases that the I state has not the right whenever it sees fit to move for a dismissal upon any ground that it may have This position is as nonsensical as the stuff that this attorney has been stating about the manner in which the prosecution prose-cution tries Its cases through the newspapers Now I do not know what he refers to I do not know whether this is one of the mornings when our learned friends head is full of idi osyncracies or not but at any rate he is entirely wrong in supposing that the prosecution tries its cases through the newspapers or in any way influences influ-ences or dictates to the newspapers in what they do So far as mecUm Judge Wenger this court knows the persistency with which newspaper reporters I re-porters pursue items for their paners In coming up Main street I met Wen I ger immediately after the meeting of the reporter of the Tribune and I I asked him if he could hear this case I 1 He said that he could the following I day That is all the conversation that I occurred at that time or ever occurred I between us with reference to the hearIng hear-ing of this case I Now this case as my brother says we agreed should be set down when I < i the witness Marshall Adams could testify I saw Marshall Adams once or twice I saw him the day before I i yesterday he was at my office for I nearly two hours He was then in no physical condition to go upon the stand It is true he had been out for nearly a week but the poison that has gone through his system was such that he could not talk longer than five minutes at a time I had the 5n terview with him in my office and he had to stop for periods of five or ten minutes his tongue was so swollen with the poison that had gone into his system that he would not have been able to give his testimony and we arranged with him to come 1ere f just as soon as possible GOT A DOSE OF POISON He disappeared once as this court well knows by public notoriety He was found in Ogden and brought back the case was then set for trial and neI I got a dose of poison we do not know how but he got a dose of poison that came nearly finishing him There has been trifling somewhere Where it is I I I do not know and I do not propose to say I have no evidence that would justify me in saying only this that so far as the people are concerned so far as the stat is concerned I can saY fairly and conscientiously that they have no knowledge or information infor-mation either directly or indirectly which would lead them to know the reason why this man had disappeared and we have in no way directly or indirectly in-directly been connected with his disappearance dis-appearance Whether the same can be said of the other side I do not know and so far as this argument is concerned con-cerned it does not make any difference Judge Powers Will you read the note you sent Judge Harvey Mr Whit temore Mr Whittemore ReadsTo W J Harvey justice of the peace Please come up to my office as soon as you can I want to see you on an important im-portant matter Judge PowersWasnt that important import-ant matter a statement made to you by a reporter that reflected on the justices jus-tices court Mr Whittemore sir the reporter never made the statement to me at any time JUDGE HARVEY TAKES A HAND Judge Harvey want to ask you a question while you are on that Mr Whittemore Didnt you say it was I reported that I took or got a parcel from Walker Fylers store following the arrest of Mr Fyler Did you say that to me Mr WhittemoreYes Judge HarveyThat is as false as anything could be That was the suspicion sus-picion I was under and I want to resign if there is one word of truth about all this matter and I will too if anybody can substantiate it and I want the whole public to know about it so that everybody can investigate it and find out If there is one scintilla scin-tilla or appearance of truth about that whole statement just a mere suspicion suspi-cion as a justice I would resign Further arguments were made by counsel at considerable length in which the county attorney said in asking for a dismissal now he did not abrogate the right to renew the action and begin i j be-gin anew In fact he thought of asking I the district court to call a special grand jury to look into the case DISMISSED Judge HarveySitting here as a committing com-mitting magistrate in this case I have no final jurisdiction I am sorry for these defendants that I have not final jurisdiction so that I could pass on the case but If the county attorney does not want to prosecute I have got to discharge the defendants that is all It rests with him the responsibility of bringing any other prosecution not with me The defendants are discharged discharg-ed Judge PowersTo To which ruling we except Let the record show that we made a demand to proceed and that we except to the dismissal |