| Show THE TH BE h U S supreme court review of the thiede trial NO SERIOUS ERROR FOUND e i evident vie ce in n writing names ironies of 0 witnesses s on the indictment jurors who read defendants occupation irrelevant and immaterial testimony juror as interpreter the tha instructions supreme court of the th united states state no october term tarm 1883 2891 charles chiedo plaintiff in error VIL VB the people ot of the territory of 0 utah in error to tile tha supreme court of the territory of utah november mr justice brewer delivered the OPINION OF TUB THE COURT on november 5 in the district court of salt lake county utah territory charles the plaintiff in error was found guilty of the crime of m murder and a sentenced to be banged on march 16 this thin judgment was affirmed by the supreme court of 0 the territory whereupon he sued out this writ of error the record of the proceedings in the trial court la Is voluminous consisting of over printed pages and we have not been assisted in our examination by either brief or argument on the part of counsel for plaintiff in e error r we ve have however ho carefully eka examined mined the record with the several amsl assignments of error and now state our co thereon the first alleged error Is in over the defend defendants anCs objection to going to trial fridl on october 10 1801 on the ground that the evidence taken at the preliminary hearing had no not t been transcribed certified and filed w with ith the clerk of the district court us provided by law the homicide was charged to have been committed on april 30 1894 tho ther indictment was returned on september on september the defendant was arraigned and pleaded not tullay tu llly on october 2nd and the trial was fixed by order of the court tor for october bolh and on that day when the cuse case was called tor for trial the objection heretofore referred to was made and overruled it was admitted that la a preliminary ll examination had been had that the th testimony before the justice of the peace had bad been taken down in shorthand chort hand by one fred mcgurrin McGurr ln under direction of the justice that about ten days before the trial said mcgurrin Mo GurrIn rin was asked by the prosecuting attorn attorney ey tc the same and that ho he declined to do so be mcgurrin mcgurran ln stated in open court that he had in a prior case transcribed the evidence and been refused payment dayment both by the county anil and the territory find and upon uch such refusal had bad brought suit against both and in such suits cults it had been adjudged that be had no cause of action against etther either and that the only reason he tailed to transcribe the testimony was that he would not be paid for the same THE preliminary TESTIMONY by section compiled laws ot of utah 1868 in ill cases of 0 homicide N the testimony taken upon the preliminary examina examination ilon Js required to be reduced to writing as a deposition by the magistrate or under his bis direction it 11 taken down in shorthand it must be transcribed into longhand by the reporter within ten days after the etc celoso of the examination and by him certified and filed died with the clerk of the district court the tha fees for this are t to 0 bs be paid pendant ut lit of the county treasury the do de enfant did not cot ask tor for a conti continuance continuant nuan e but simply objected to going to tr trial la I 1 because this transcript of the festl mony had bad riot not been transcribed berti fl ali d and filed As aa the time within which this was by the statute L required to be done had already passed the objection Jec tion if sustained would either have been fatal to the entire proceeding and prevented any Y trial under that indictment or at leaba would have caused a delay of the trial until such time as by suitable proceedings the tiling filing of the transcript of the testimony could have been completed and many things might interfere to postpone or prevent the ot of such transcript before be core a r ling lit Is made which necessarily tout out such a result it should a appear amilear either cither that the statute gives an absolute solute right to the defendant to in alet upon this preliminary filing or else that the want ot of it would cause material injury to its his defense neither can be A preliminary examination Is not indispensable to the undine finding of an indictment or a trial thereon and it tho the examination itself la is not in dispensable it would seem to follow that no na step taken in tile the course or as a a part of jt it can be further the statute does docs not provide that this transcript hhall be filed at any time before bedfor 0 the I 1 finding ailing 1 of the indictment or before the t trial rl cut only within ten days ot of the examination there Is no do prohibition against gilding finding an indictment or bringing on ot of the trial at any time after the commission ot of tile tho offense the statute nowhere noN liere expressly places the filing of this transcript as something hap happening happen penig lg intermediate the examination and tile the trial nor do does it make the latter depend upon upon uch such filing or even upon 0 preliminary examination further supposing the transcript Is 1110 of what avail Is it to the defendant simply this that as such a transcript Is by the statute made prima facie a correct statement of the idony and proceedings at the preliminary examination it the defendant wishes to lmeta h any witness by proof of contradictory testimony at it la Is convenient to have on file that which Is prima facie such testimony but it if the defendant can so secure the same evidence without the transcript the lack of it to Is no material injury and that he could do so in this case appears from the tact fact that the stenographer was present in the courtroom and his attendance could have been secured by a subpoena and lie he compelled under und er oath to develop from his notes any testimony taken on the preliminary examination WL we conclude therefore that life alie law does not forbid it trial before the filing of tills transcript nor was in this ease case the failure so to ills an error working substantial injury to the rights of the defendant NAMES or OF WITNESSES S ON THE indictment the second matter pree presented ente d Is that the court permitted certain bitnes witnesses ies to testify in life case over the objection of the defendant when their 1 aines were not ind endorsed indorsed Indor sed on oil the indictment nor included in a list furnished the defendant by the prosecuting attorney and defendant had no knowledge that they would be called to testify until the trial had I 1 begun agun it appeals th that st on ortal october 2nd and when the case was bet t for trial the defendants counsel in open court requested tile district attorney to furnish them before the trial began with the names of all witnesses to be called by the prosecution ort on the trial stating that they did not claim it its aa a matter of 0 but ot of favor and thought it was only fair to the th defendant do that lie he should be so advised thereupon tile district attorney stated that ho he was unaware of any witnesses other than those chobe names jamea were on the bult back b of t the indictment excepting tour four whom he be then named but promised that it if he ascertained there wore were any others he be aou would a give into information in regard to thorn hem OM ai non on a r ci dt u on tile the stil of october lit h furnished tho the de with a list ot of other witnesses on tho the alth ill the day after the trial commenced he be notified the tha defendant of 0 still another witness who was a in fact riot not called led until the tha loth and four four days before the dof tenso rested by section 1033 rev stat U S tho th defendant in s capital case Is entitled to have delivered to him fit bt least two entire days before the trial it copy of the indictment and a list ot of tho the witnesses to be produced on the trial rial 10 loran vs united state i HI 11 S but this section applies to the chault and d Din district triet courts of the united slat states a nod and doea not cont control to I 1 the practice I 1 lee a and 11 procedure of tha a courts of 0 utah which ore are regulated by the geat lutez of that territory this quei bueb tion aus as fully considered in hornbuckle Horo Horn bucklo v toombs 18 19 wall and it woo held overruling prior decisions that the and procedure ot of the territorial rit orial courts as well as is their respective jurisdictions were intended by congress Con giess to be left to the legislative action ot of the territorial a and to the regulations which be adopted by bv the courts themselves see also clinton v englebrecht Ene lebrecht 13 well wall lit in which it was wag held that the nc fe lection of jurors in courts court was waa to be ino in conformity to tile the territorial statutes good v martin 95 U S 90 in which a like ruling was made as to the competency 0 of witnesses reynolds v united states 98 U R S ha where the iho ame tame t rule was w applied to the Im paneling ng ot of grand ju lora fore find and the number of 0 jurors ill also illee v united states U S a case from t the territory Z of 0 utah in which the same doctrine was wag announced with regard record to the mode of chall nl petit jurors pago v burnstine U S WS 60 therefore to the territorial statutes there Is none which directs that a list of the witnesses bo be furnished to tile the defendant section iba comp lems laws utah requires that the names of witnesses examined before the grand jury bo be indorsed endorsed Indor sed on the indictment before it Is presented there la Is no pretense that this was waa not complied with in the absence of some statutory provision there is no irregularity in calling a witness whose name does not appear on the back of the indictment or ties lias not been furnished to the defendant before the trial the action of clo counsel tor for defendant lc in asking arking that as a favor the names be furnished them indicates their understand lne ot of the tha extent ot of defendants light fight and so BO far as appeals tho the district attorney fully cash piled with this request and a d furnished the names as fast is as h ho was advised that they would be ebed called there la Is no that the defendant was BBS B BS surprised by the calling of any watne witness s or the testimony that he gave this allegation ot of error therefore Is without foundation JURORS WHO READ the third assignment Is that the court erred in overruling defendants challenges tor for cause directed against tour four jurors on the ground that on tile fotr dire they showed thern themselves selves incompetent to serve these jurors testified substantially that at the time of tho the homicide they had read accounts thereof in the newspaper and that some impression hail had been formed in their minds from such reading rea dinc but each stated that he could lay aside any such impression and could try the case fairly and impartially upon the he evidence presented section lein compiled laws of utah reads that no person shall be disqualified as a juror by reason of haying having formed or expressed on an opinion upon the matter or cause to be submitted to such jury founded upon public immor statements in public journals or common notoriety provided it appears to the court upon hla his declaration under tinder oath or otherwise that he can and will notwithstanding ruch puch an opinion act impartially t ally and fairly upon the matters submitted to him the testimony ot of these jurors clear clearly ly placed them within the terms of t this his statute and there was no error in overruling the challenges reynolds vs united states PS 98 U S US hopt vs va i uta utah h U S spies vs illinois U S ul ill connors vs va united states U S 08 M occupation OF ACCUSED the defendant was a 1 saloonkeeper saloon faloon keeper an and d one of the jurors also mid eald that he had a prejudice against that bust business ness that he be did not know the defendant of jdant a and nd bad no prejudice against him individually but simply against the business ot of baloon ping that such prejudice would not influence him in any w way t 1 Y upon pissing passing upon the gulit or I 1 innocence i iodence of the defendant but that his occupation like that of any other witness might affect the credit he would give to his testimony but tile the charge against the defendant the matter to be tried bad no reference to the occupation in which ho he was engaged arid and therefore a prejudice against such occupation la is entirely immaterial in spies vs illinois U S a juror testified to a decided prejudice against again at socialists and communists its as the defendants fend ants were said to be but as the charge to be tried was murder and there was no prejudice against the thed defendants fend ants as individuals he was re accepted and sworn as a juror in the case a at bar the juror was waa howe however ver excused by the defendant before aai all ais hla peremptory challenges were exhausted hopt vs utah U S 30 hayes vs U S CS 71 AS TO irrelevancy A fourth assignment Is that the court erred in admitting irrelevant incompetent and immaterial testimony in order to appreciate this assignment of error it becomes necessary to state briefly the circumstances of the homicide lom I 1 cla the defendant owned a brew er err y ind and adjoining it kept a salo saloon on he be bad for or some time prior to the homicide been sleeping tit in the saloon while hla his wife and their child a girl of 0 about 0 years ot of age slept at the dwelling house ft A short distance away somewhere about I 1 in the morning of tuesday may hay 1 1691 the defendant tit awakened one jacob lauen herber r and informed him that he had found his wife lying dear dead with her throat cut upon examination it appeared that the head bead had been a almost severed revered from the body by a N wound made with some sharp instrument probably not a pocketknife pocket knife or a razor but some large knife or similar instrument the deceased was lying within three to live five feet of the southeast corner of tile tho saloon about thirty feet further eart earl was it a pool of blood with evidences of a struggle and from that point to where the body lay I 1 there here were wera marks of blood the defendant was waa in or near the saloon during tho the I 1 night until lie he went with the vIlL gillness ness Lc luenberger for a ph yel clan and tile the saloon was lighted during the whole of the night there was bi blood 0 od upon hla his hands and upon ills his clot clothing hing when lie he awakened Lau ladenberger enberger anil and th thereafter e r when going eoens for it a physician and n ne d arter after bla big return he manifested grief at tho the loss of his wife there was evidence of ill treatment by the defendant of his wife for a number of years yeara though tills this was denied LY by him and his denial sustained by other testimony on the sunday evening preceding the murder the defendant find and his wife had quarreled the witness Lau ladenberger enberger called them into ills hla house and accordini to ills hla testimony and that of his wife the defendant wh while there laried ills his wife in ill the face rind and ordered her to go BO horne home and she refused to go CO frying that thai it if she went home the il would kill her that night tile tho last lait time the deceased was A awn on toy y any witness other than the d efen dat was about 10 monday svening when she was wag outside the defendants saloon the night was dark now the most of the testimony objected t to 0 was introduced tor for the purpose of X ill treatie treatment ent by defendant fenda tit of deceased all and d a s state tat e of bitter feeling between them alum this of course bears on the burtlon of motive and tt edg to rebut the presumed improbability of a burband murdering TIN wife |
