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Show DONALDSON 1UST I DO ATEN-SPOl" I Supreme Court Affirms Judg-in Judg-in cut of Lower Court in Notorious Case. ECHO OF THE FAMOUS M'WHIRTER CARD GAME Well-Known Gambler Is "Fall H Guy" in Conspiracy Against Sheets. "Sunny Jim" Donaldson, the debo-nair, debo-nair, widely-known Salt Lake gambler,) must spend ten years at hard labor bon hind tho bars of the Utah state prison for his part in the Tobbery of tho Mc- Whirter brothers of 10,373 in a bunko card game in the Antler rooming houso: on West Second South street, Sept cm-bcr cm-bcr 30, IO0G. The supreme court, in an opinion; handed down Wednesday, denies Don-aldson's Don-aldson's appeal for a 'reversal of the iudgment of the trial court, in which lie was found guilty of grand larceny for his connection "with the robbeiyr and affirms this judgment. Tn doing this the court says that Donaldson be-yond be-yond doubt was a member of tho eon-' spirnc3' to defraud the McWhirter1 brothers out of their money, and do-dares do-dares that the Scotchmen novcr had jH a chance Mo win. Donaldson was found guilty in Judge IH Gcorgo O. Armstrong's divison of tho 'H third district court July G, 1007, and appealed to the supremo court for a reversal of the judgment of tho lower' court upon an assignment of IGO er-( rors, chief of which wero that tho evi-' dence wns insufficient to sustain a con- jH viction for the crimo of grand larcenv,! jH and thnt it likewise was insufficient to establish tho conspiracy which thu jH state alleged existed between Donald- fH sou and tho four other confederates in jH the robber'. Another assignment was jH to the effect that improper evidence,, H prejudicial to tho defendant, was ad- lH mittcd and, that the defendant did not jH havo a fair and impartial trial. As H to the assignment that tho evidonco' IH was insufficient, the supremo court says: IH Bible la Oitcd. "To say that tho taking of monov," under the circumstances of this case, does not constitute larceny, would bo to say that the commandment, 'Thou! shall, not steal,1 is .a f.tTce ' and our statute a delusion. We would, indeed, lose sight of substance and follow a mere shadow if we hold that tho nioncy was won by tho defendant at a gamo, of cards, in which all tho players riskod their money and the best hand' won. Tt is clear to us that the Scotch- fM man never had a chaucc to win. and that hc was the only ono of all tho players that actually risked anything or could lose a farthing. To hold,"therc-fore, hold,"therc-fore, that such a game constitutes merely gambling, and that tho offend-crs offend-crs arc punishable only for that of-feuso, of-feuso, would be to hold that tho in-tent in-tent with which an act is dono is not to bo looked to to determine its crimi-nality, crimi-nality, but that the name by which it is known controls. Tho objection that the acts proved did not constitute tho :H crime of grand larceny, and that no conspiracy was proved "to have existed between the gamblers, ennuot be sus- Tho court took a slap at tho numcr- ous assignments of errors declining to jH consider all but one or two in tho jH following language: "While wo always endeavor to pass H upon all tho errors that arc assigned and argued, to comply with the constl-tutional constl-tutional requirement of giviii" reasons for our conclusions, wo. nevertheless, must limit the discussion to assign- mouts that contain merit. After a jH careful perusal of tho record, we aro fully convinced that whilo a very few of tho assignments may constitute what. ,H is termed technical errors, not a single jH ono of all those that aro assigned, in tH view of thu whole record, constitutes- fH prejudicial error." As to Taking "Dope." H The court then takes up an assign- iH meut of error in X ho lower court in allowing a question as to whether ?H Donaldson, was addicted to tho uso of jH opium, which was answered in the uoga- tH tive, to remain in tho evidence, and iH says that np 0110 would seriously con- tend, although it was conceded thnt tho fl question was wholly improper, that it il wns prejudicial error to admit tho an- H "But wo can not pause." contiuues ll tho opinion, "to give further illustra- fl tions, and will not. devote either timo ll or space to further discussions of tho !H errors assigned. We will add, however, i that the instructions wore fair and cov- ercd every phase of the case, and that 1 the defendant's rights wero gunrded at all points. If any errors were committed i in the admission or exclusion of evi ; denco the state had far moro ground for complaint than tho defendant. Tho JH stato in many instances was not per- H mil ted to ask leading questions when ) nothing was sought by them except to IH establish a negative. Tha wholo record satisfies us that the defendant hnd a lH full and fair trial: that he was not H prejudiced in any substantial extent, niid thnt the judgment of conviction lll ought to be, and accordingly is, af- j firmed." History of Caso. , BriefPy tho history of the now fn 1110113 robberv is: Alexander and William fW McWhirter, young Scotchmen on their ! M way from Scotland to Los Angeles, while stopping in this city wero np- tl proached upon the streets the dav of ' IH tho robbery by a stranger eivinq them j tho name of "Mr. Morris." This was 1 Larry O'Brien. "Morris" evinced a lively interest in the McWhirtcrs and M after telling thorn something about him- jM self took them to a room in the Antler j rooming house, where ho expected to I M meet his uncle, he said. In tho room were- Donaldson and anothor man, M O'Brion's brother, Jack O'Brien, who had been playhig cards, they snid. "Morris'' introduced Donaldson and his brother to tlio McWhirtcrs under : r : 72ZSailKr-H fn tilious name, stylius: Donaldson 'lr. '" :inl his brother as a rainiup: ox-ifit. ox-ifit. 'Morris"' soon joined the oiinl ?mhic. and subsequently naked the. older McWIiirlcr brother, Willinm, to enter I he game, ir. Whirter declined on the croinids that In knew nothing about the same, but " Morris' J loJd hnn he would show Mm how fo piny and ot fered to turn over his chips, amount inc to $10, and MeWhirtcr consented to ' ' ftcWhirfer dealt. Die cards, under the direction of the other;, and the belling bel-ling stnrted. Soon the bets exceeded tho Amount of chips "IMorrifi" had turned over to tho victim and IcWlnr-ter IcWlnr-ter demurred to putting up money. Thsn " Morris" told Mc Whirter hn would have to put in more to avoid losing what bnd boon staked, but Ic-Whirtcr Ic-Whirtcr still objected, and -'-Morns, pretended that ho would put up his nwii monev. To this tho other players obiected. "insisting that inasmuch as the Scotchman was plnying the hand ho should put. up his own money. Whirter ''fell," "Morns' representing represent-ing that he would -win in ho end it ho rontinued to meet tho bets as made hv the other two. I Big Sum on Tabic. In this wsiv the bets weic raised, ( until McWhirt'er filially had $20o0 upon tho table. Then Donaldson claimed, that he had won and pocketed tho money The Scotehniau protested that, he had been robbed, and asked his brother to ,' call a policeman. "Morns' at, once ' said ho would attend to this himself. I and. leaving the room, soon returned I with two men. W. Ji. Bell and Vv. II . i Parrent, who pretended to be policemen. The Scotchman told them his troubles and thy pretended that it would be 1 necessary to search all the players. Both ( Donaldsou and tho elder Scotchman wero searched and relieved of their money, Donaldson of tho $2050 and Me- Whirter of iS373, tho balance he had. ' living McWhirtcr a receipt, tho pre- 'ended policeman, who senrched luni, iH it would be necessary to take them all to the polieo station. McWhirtcr and his brother worn placed in charge of one of the protended policemen, who trailed them all around the city, but did not take thorn to the station. Donnld-i Donnld-i son and tho ''mining export" went with the otlK-r pretended officer and wero not ! con thereafter bv the Scotchmen. The McWhirters then left tho city, .-$1000 ! being returned to them, but afterwards came back to lake up tho prosecution of the case. . The $937.'! was divided, it is aliened, among the alleged policemen. police-men. Donaldson and the "iniuing ex-PprL" ex-PprL" , , Of the four others in the bunko same onlv Donaldson was caught, ITo is the "fall guv." His trial -was begun in Tudge Armstrong's division of tho third district court. June 21. 1907. and finished fin-ished July 6, i?07. Chief of Polieo George A. Sheets, now chief of detectives, detec-tives, was drawn into tho case on charges of grand larceny, conspiracy and the like for political reasons, but theio charges all fell Hat and ho was acquitted. , . . Parrent and Bell testified against sheets as strongly as. they knew how, and, for this service, were released. All this has left Donaldson to "hold tho jack." " , . Justice .T. Ti. Frick wroto tho opinion. opin-ion. Chief Justice D. X. Straup and Justice W. M. McCarty concurring. Donaldson has twenty days in which to filea petition for a rehearing, his next, step in the case, if he cares to contest con-test it further. |