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Show Ilsthoi mi EwiiiiiiQ) by mm mm ofmiois "AR EMBERS OK THE UTAH BOARD OF PARDONS. Top, left to right Justice W. 1W M. McCarty, Chief Justice D. N. Straup and Justin. J. E. Frlck of the supreme bench. IBow aMlie left, Governor William Spry; at the right. Attorney General A. R. RarneH. Execution Is Scheduled for Next Friday Morning Unusual Interest Attracted by Efforts to Save Murderer; Hundreds of Threatening Letters Have Been Received Demanding Commutation. Statement Is Written by Justice D. N. Straup LhjteBvidence Is to Some h'xtent Circumstantial. Mfembers re Convinced That the Condemned .Wan Is Guilt ol Murder. I nr it ,k mur "'r ' l'th' .Tim.na! hi-torv hut at rgtetod Ik Wd.-sir,d attention gn-fli trto Morn.,.,, ,.,,., he i.ennltx .0r wkii'b jrinif "ill b lai) bv ,lo.-pr. HUUtriun, .rihil- nu'iubir ib 1 w A ! !" " ' ! I hat org n wiit ion under Ik L Jo Hill. Hilljlrora i to b i.vur,., for the slaying of iir,..-.-r .1. fu.-ijor st'.i his s.".' tv- r'ri'iay morning, almost two yosrs after he L;ttri tk mart'. fj k tit w start.-. mmbrs of the t W v.w erineed .. keen Lot fC0- As rnult of the article printid In tie Appeal to Ej, ffi Olkar publications. Crovmo Spry, the ntrmtf.rs of the supreme Lfttk. MOWCUling officers, the juag in the rae, rh warden f the -Kits') "J tk guards and ro.ee. 'ers ef the sheriff's ofliee have re JUjAoaiiad of letters from all se.-t.oas of the world Main of the let Ume of threatening rat.ire. several declaring that if Hillstrom is exe tiM gwor will be aasassinated. Othfrj deelar. 1 thu: punishment x visited upon members of h':s family. Mowing Ik ril of the case ui the distnet court, where Hillstrom whs mrt:ri. tie eM waa appealed to the supreme court, which sustained the j&x ia ptal waa lien taken to the board of pardons, which on Sep gjj; refused Hillstruai any commutation alter the man and his attorneys Kieei in every possible opportunity at making a showing as to why K L.-COB should be taken FaWMtte S. Straup. a: the direction of the board ol pardon, pre LiMWK in neeordnnee with the law on the su'oject, seiting forth the Ljas f Ik board far refusing coina.atntiot- Ik statement, which was unanimous;.'! adi.ptesi t. the buard a: is a;j lesterday. and the original reriew oi the case a.. gien m the written in of the members of the supreme court mhen it heard .the appeal riK trial are as follows. I I over he claimed to be th truth about the case, but that ho had declined to gie any information, or to make any statement, or to tttifwer any qoestin:., except on a new r.rial of the C8M before a jury, which, tbey had advised bin, this board was powerless to grant. Some members of the board almoflt plaufld PfHh bini that if he was innocent inno-cent he ought to gi ve tho board some information, or so met bing. whi:h at laftt might raise a n-aomible donbt in the- minds of the members of the board and thus give tbom some ground upon whi'rlt to commute the B0nt6ZVC0, One of the reprcsentativeg of the Tn-dttfttrial Tn-dttfttrial WX)tken of the World was asked if hp desired to bf h-ird in behalf be-half of thp applicant and if. he v.-ould not rooaolt with him in view of fur uishing whatever information the applicant appli-cant had in bis favor. The representative representa-tive but replied that the applicant koew his own mind and was quite capable of dntermining for himself his own desires in the premises, and that be did not care to advise him either one way or the other. Wants to Be Martyr. Some members of the board even went bo far as to say to the applirant that if he would give bis attorneys and the warden the name of the mau whom he claimed Mo the doctor had shot him, the name of the woman and the plftee and the circumstances of the shooting, so that the mattr-r BOOH be investigated, investi-gated, and if on such id vest igat ion it should be found that he was shot in such manner, he would be given an unconditional un-conditional pardon- and that the names of the parties to the affair, if any such had occurred, would be kept secret and made known to no one except the warden, war-den, bis attorneys and those investigating investigat-ing the matter. But, after a conference confer-ence with his attorneys, he declined the proposition, hia attorneys stating to the board that he declined to give any further fur-ther information, and that "be wanted to die a martyr." There were aJso before the board a number of letters which were received bv the chairman of the board from many different states. A few of them were from tho?e seeking information as to the real facts of the case. Some cf them were threatening demands to release re-lease and discharge the applicant, regardless re-gardless of whether he be guilty or innocent. in-nocent. Others were from those who,-though who,-though in remote parte of the country, nevertheless claimed to know what the facts in the case are, and stated that there was no evidence to show the applicant's ap-plicant's guilt, that he is innocent, and that he had not bad a fair trial, find for these reaaons asked that he be 'discharged. 'dis-charged. All Are Misinformed. But in everv such instance it is apparent ap-parent from statements made by them that thev have been misinformed as to the real "facts and that tbey have been misguided and misdirected. If those who seek clemency on these grounds could but read the record in its entirety as we have, and not some mere garbled reports and pamphlets prepared and sent out by partisans, they would reach a different conclusion. For it is almost al-most inconceivable how any impartial and unbiased mind, reading the record in its entirety, can reach any reasonable reason-able conclnsion other than that of the applicant 'p guilt. Other letters and communications were from those who. wholly unfamiliar with and uninformed of the real facts of the case, labored under the impression impres-sion that the applicant wss arrested and prosecuted because of his membership of and connection with an organisation known as the Tndnptrial Workers of the World, and that the trial involved something some-thing that the applicant had done as a member of, or in pursuance of that organization, or in furtherance of its principles, and that hence the eal contest con-test involved the rights and general welfare wel-fare of members of that organization, and of laborers and -workers of the world. And while they protested against the applicant's execution and threatened and demanded bis immediate discharge, vet indicated, iu the event their protests pro-tests and demands should be unavailing, unavail-ing, that they exalted the applicant as a martyr dying in and for a most righteous right-eous cause. Tt is, indeed, difficult to perceive how a n von e. unless groslv misinformed ol the facts of the case, could entertain any such views-. Natural and Proper. It is natural aud proper enough tor the organization of which it is cJaimed the applicant is a member to aid him in his defense and to see that his trial was had in accordance with the laws of the state and of our couutrv. Rut this controversy in no way involved any rights, doctrines or principles of auy organization. There is nothing m the record whatever, nor in the historj' utf the case, to support any such claim. Confessedly a most revolting double murder, without any extenuating or mitigating circumstances whatever, was committed by the two assailants who entered en-tered the store with faces masked and guns in hand. Certainly no one can exalt a perpetrator of such a crime a martyr. The only question, then, is, was the applicant one of the perpetrators who committed that crime? If lie was, then ought he to suffer the consequences of his willful and criminal acts, not because be-cause he is or is not a member of ativ organiaa tion, but because of the awful offense committed by him ? If ho was not. then he entitled to a discharge, again not because ho is or is not a member of any organization, but because be-cause of his innocence of the charged offence. Sufficient Evidence. As heretofore observed, the state, at the trial, produced good and sufticient evidence to connect the applicant with the commission of the offense. Agatnst that evidence the applicant produced nothing, and at all tines withheld everything. every-thing. When thus nothing whatever vwas made to appear before the board to jus-tifv jus-tifv clemency or 11 commutation of sentence, sen-tence, and when the applicant, after ii conference and consultation with his counsel, asserted that he did not wish a commutation of sentence, but tie mauded a new trial, which we,' he was j advised, were powerlesn to grant him, and when, too. no showing whatever wai made to justify the granting of a new trial, though we had the power to gTant it, there wan but one courne open to the board, and that wae to deny th application, which was done. To have reached any other conclusion requires a holding that capital punishment punish-ment should not be inflicted in any case of first degree murder, no matter how revolting the commission of It may have been, and to disregard the constitution and the statute of this state on the subject. This opinion and report is concurred con-curred in by all the members of the board. It it be recorded and 61ed with the records of the cause before the board and made a part thereof. Such is the order. (Signed) WILLIAM SPRY. ' Chairman of the Board. ''Signed) A. R. Barnes, Secretary of the Board. The opinion of the supreme court in its review of the case on the appeal from the Third district court was written writ-ten by Chief Justice D. N. Straup. Concurring opinions were written by Justice W. If. McCarty and Justice J. K. Krick. They follow in full: Ptraup, C. J. The defendant wae crni-victed crni-victed of first degree murder and appeals. The principle question presented Is that of sufficiency of the evidence. The claim made is that there is not sufficient evidence evi-dence to identify the defendant, to connect con-nect him with the commission of the offense, of-fense, nor to show motive. In trie information it is charged tliat lie with a revolver shot and killed J. G. Morrison. The deceased was conducting a grocery store at or near the corner of Eighth South and West Temple streets, in Salt Iake City. The store, with a glass front, faced east on West Temple street, running north and south. About a half block to the west is a cross-street known as JefTerHon street. Midway between be-tween that street and West Temple is an alley. The homicide was committed in the store between S:45 and 10 o'clock p. m. on the 10th day of January, 1914. With the deceased in the store were his two sons. Arling, about 17, and Merlin, about 13 years of age. The night was a bright, moonlight night. Near the store was an electric arc light. .There was another near Jefferson street. The sidewalk and the street near the store were also lighted from brilliant lights in the store. Two Robbers Appear. As the deceased and his two sons were preparing to close the store, two men with red bandana handkerchiefs over their taes as masks, and with revolvers in their hands, suddenly entered the store. One of tbein was tall and slender, and wore a dark, or dark gray, soft hat. and a dark coat and dark troupers. The deceased de-ceased was near a counter on the north side of the room, moving a sack of potatoes pota-toes behind the counter. Arling was on the south side, sweeping near a cash register and an ice cheat, fn the upper part of the chest, from which the door was removed, the deceased kept a loaded, six-chamber, .35-caliber revolver. Merlin, the only living witness to the shooting, testified that as the two assailants as-sailants en'-ered the store and approached his father they said. "We have got you now," and immediately shot. He gave it as his best .lodgment that about seven shots in all were fired, when the assailants assail-ants fled, without attempting to take anything any-thing from the cash register or elsewhere. else-where. , Both Shot Dead. The father and Arling were both killed. The former was shot twice; the latter three times, twice in the back. Later five or six bullets and empty cartridges were found in the store. They all were shot from a .38-caliber automatic revolver. Two bullet marks were found in shelving or the counter where the deceased was killed, another on the inside of the ice chest, where the deceased kept his revolver, re-volver, and two or three where lay the hodv of Arling. behind the counter, with one" bullet hole through his body and straight down through the floor. Meflin testified he did not see the first shot fired, which hit his father, but saw the second, which was shot by the taller of the two assailants, who then directed hia attention toward the ice chest. Merlin retreated re-treated into a little storeroom, where Ije no longer saw Arling nor the assailants, but heard shots. After the assailants lad fled, Merlin first went to his father, and then to Arilng. He found the latter dead behind be-hind the south counter, and but a short distance from the ice chest. Near his outstretched out-stretched hand lay the revolver which was kept in the ice chest, with one chamber cham-ber discharged. An officer who examined ex-amined it shortly thereafter testified that it was freshly discharged. Merlin testified testi-fied tliat he saw the revolver in the ice cheat earlier that evening, and that then all six chambers were loaded. He testified testi-fied that he did not see Arling get tb gun from the chest, and did not know that he had discharged it until he found It King on the floor with one chamber discharged. From this it is quite evident that at some period during the shooting Arling went to the ice chest, got the gun. and discharged it at the assailants. Apparently in Pain. Another witness whose attention wan attracted by the shooting saw the taller of the Lwo assailants come out of rhe store in a rather stooped position, with bis hands drawn over his chest, and heard him exclaim as If In great pain. "Oh, Bob!" and saw him cross the street to the aliev. where he was Joined by two other men. They there halted for a moment mo-ment and disappeared in the alley. 'Another 'An-other witness saw the taller of the two assailants run from the store into the street near a pole, there halt, end then go towards the alley, and heard him In a .-dear voice say. "I am shot." The next morning a gob of blood about th fdze of a quarter spattered over the sidewalk for a space of about a foot was found at the entrance of the alley. The blood had the appearance as described by the witnesses, as if coughed up and spat on the sidewalk. Similar blood found down the alley where the asa Hants went and were heard lo mutier to themselves. Movements oF Defendant. The defendant on the day of the homicide homi-cide was visiting with acquaintances by the name of Ksellns. at Murray, a town about five miles south of the place of the homicide. At that fcoue were Mrs. Rselius. her six brothers, her father, and one Otto Applequist. Some of them had been working at the mills or smelters at Murray. On the day of the homicide sove of them left Murray about 5 o'clock p m to attend a theater at Salt Lake City. The defendant and Applequist remained. re-mained. They were seen at the Esetioi house as late as 6 o'clock that evening. The- left that evening sometime between fi and 0; the exact time is not made to m ppear. A ppjequist did not return, and tlOl l'en seen nor heard of since. Thai night between 11:30 and 12 o'clock (Continued on Following .Page.) Iljjt the court eteQMI to appoint someone some-one else in our place. If the defendant wishes sonic othei at t or ne appointed, we will .-heerfullv withdraw. " The applicant did nut then ask that his (SJPJN with truw or that other conn tl be appointed lor him. but assented tu his counsel proceeding in hi behalt, with the understanding, howeer, that he bo gi en the right to exuinioe wit-Maaee wit-Maaee hiinseJf. The court grunted him tliat right, aud the trial thereupon was resumed. Additional Counsel. Shortly t her eu Iter I he noon hour adjournment ad-journment was taker. When the court cuuvened in the at ternoon additional counsel appeared for the defendant, anj asked that his name, at the request oi the defendant aud of his friends, be en: ere-, as counsel for the defendant. That i doue, and from thenre ou foi four days, taxing testimony in the caw. all three counsel, with the defendant's consent, represented him and took part in all of the proceedings to the end of the trial, without anv objection from an v one. It was not claimed before the Mipreine court that the applicant's counsel had been unfaithful or disloyal to hira. or that they had not done a'il in protecting aud aaiejruardint; the rights and interest of the applicant that was proper for anyone to do. Other alleged errors also were considered con-sidered by the supreme court, bur the content ions made with respect to them aiso were held unfounded. The court, upon a re tew of the whole record, stated that ''we are satisfied that there is sufficient evidence to support the ver-diet; ver-diet; that the record i. f'ee from error: and ths; the defendant had a fair and impartial trial, in which he was granted jeer'. right and privilege vouchsafed ly ;he !." The judgment thun. on the ithird day of Juh. 1915, was affirmed. The applicant, within twenty days thereafter, had the right to file petition peti-tion for rehearing. Th court also, upon application therefort bad the rijh to extend that time. No petition vn tib'd and no attempt whatever made to do so. Again Sentenced. Upon remittitur, the applicant wss. I by the district court, again seriteuced to death by shooting on the flr; day of October. 1915, lie thereupon applied to this board for a commutation of sentence. sen-tence. The application was heard on the eighteenth of September, 191.V 1'poti that hearing the applicant was re pre 1 pen ted bv O. N. Hilton of Denver and 1 fViren X. Cbristeiiseo of Halt hake Ity, attorneys, and who also prooeuUd the appeal for him to the supreme bourt. One of them also represented him at the trial in the district court. The up pltcant also was present at the hearing before the board from beginning o f nd. Ho also were ropreaoiital (Vei or i committee com-mittee of the Industrial Worker? of the World. The ground' stated for a comma tfttioc were that the evidence was inuftieient, that the applicant bad not had n fair trial. hi counsel stating that he had Ifad ' ' a legal trial, but not a fair trial ' ' ; that the case rested on circumsta-ntini evidence and that the life of one should ; Dot be taken on that kind of evidence; : and that the infliction of the death pon altv waF barbarous and ought not to he 1 imposed in any case. Here let it be observed that the applicant before ver diet and judgment was entitled n er presumption of innocence; but after a verdict finding liim guilty and after judgment a no if? Jifh'rmancc the presumption pre-sumption of innocence no longer prevails. pre-vails. Presumed Guilty. The preanniption then to be indulged ii that the judgment ffl right ami COB. the applicant is "guilt v. He, after that, had the burden to show, or bring forward, for-ward, or point out, something to jus tifv a commutation of sentence, or element; "n his favor. But neither he nor bJB counsel, before the board, attempted at-tempted to point out awythiBfl; wherein, i or in wbat particular, they claimed the i evidence wan insufficient to justify the ! verdict. Nor did they offer or attempt to bow anything respecting the applicant's appli-cant's life," habit, morals, or previous character, or what trade, profession or occupation had been followed bv him. or who h was, or what he had done, or where he was from, or what kind of life had been lived by htm. Nor did they offer or attempt to show anything new or additional respecting the aagej or anything in favor of the applicant, or anything to justify commutation or clcmencv. Wbat was urged in support of the ap plicalion is this: Cases were referred to wherein we were told convictions rested nlone on circumstantial evidence and where later it, was dlgelosed thai the persons convicted were innocent. Tt, however, was not claimed, nor was there anv attempt made to show, that the facts in those cases and in t hie case were similar or even analagous. Frequent Fre-quent assertions were made by counsel that the conviction here rested alone on circumstantial evidence and tiint the applicant's life ought not to be taken on that kind of evidence. But. as stated stat-ed by the supreme court in its decision, and as shown bv the record, the e.nn-viciion e.nn-viciion here does not rest on circumstantial circum-stantial evidence alone. Direct Evidence. Tli pre is direct evidence, test Imonr of eye-witnesses, m identify the applicant appli-cant as one of the perpetrators oi t!;e crime No reference whatever was IVe ippbieaat, Joseph Hillsirooi in k ewit of Salt Lake county, n napaitial jury oi twelve men. fc fcom ao complaint o: prejuuw-e, bar satmhraass has bean madf, was, i an "ta Jay at Jun. ii1.-., -en-;:; ftl Border in the nrst uegree-: uegree-: tie statutes oi this state, whe is :md guilty of such an orlenae. ijcy. by theiT verdict, may reeom K tail's be imprisoned tor life. i tie absence of inch a recoaunemia t tat court is required to inipoee the k KDteace. Toe jury refused to lit -a recommendation, and hence icsart iaiposed that penalty The latie farther provides that the ae-ssl ae-ssl s faaad guilty may choo-e letter death shall be inflicted by hang k :j shooting. The applicant chose p Bsssr. The court thereupon sea-m: sea-m: an ;o death by shooting. From ii iseat the applicant prosecuted i urea; to the supreme cosrt of the ti tention of Appeal. w af the principal contentions made it, ippeal was that the e . assavBBat to connect the applicant nu? onuniaeion of ..- . c- ::ja a complete transcript of all fnefflee adduced before the r.a at ia-i spoo a complete record of i bbk, reviewed that questioo, and Trittea efiaioa. filed July 3. 19h. isaUsherl in 15 Pa-. 3o. . . . ft ah r set forth at considerable length the pf which, ta its judgment, jus-h: jus-h: Tje verdict of the jurv. For a p- BBdemaadiag of the' facta of lease, i copy of the opinion is hereto pst It is aot neceesarv ro here KM :Mled statement of them I?t r by noting some o: them. ! appears hy the opinion, arr as rr :he record, two men with red aaaUterehiefs ower their faces !sts. acc witt guns in hand, at o dock at nieh. on - Wry. 1914, entered the gtor of ;wei. J. G. Morrison, in CsaJt t'-it. and there shot and hilled nd his son. amLS?.bted P03 of the aaa;: sneroe the store was either mur-.iT1- 0T "wtb. The deceased ; J: bis son three timps. In jatk one of the assailant- as af ibet br thf son, Was Found. with which the son did the ? w found near the ont-r2?Bd ont-r2?Bd of his dead boiv. witn JJber discharged. One of the as he raii from the store, blu n cIai:n- as if in great -a aiw: L.' , sn" "I air. shot." 2 rW.e blood was found on the alley near the store. " the assailants, after the raJJk" h'd to mut- liL81 living eve witness to Z-a younger son of the d-j d-j iTJrf o( the handkerchiefs "taw!?9' Prtha of the facial kk- v L a9BaiJaDU wefe hidden ifi hat th- ger- t aZr,i one of th assailants ftw Jf6 ame as those of th J- and that he had the same FtvY' about the sam size, ( 'same clothes as was shown Ife'T 'h that niKt. LWa8u wony of two i Y-T' "J1084 attention was at-t at-t ;,irhe 'hooting, th.it the size eei'VfS -f on; of fhe perpe-T perpe-T tnm' and whom thev ,n from the fctore after the taryfu .looping posture, were iiZS?' aRParance and build fT ?n.d thgt hi" voir., ' n5ar tl2b' ami "r ar.; rh-;t" r of IS; vx f tho apr,H- rr exactly the ,am., Oants Seen. : Zn9Xn; tP:r be saw K tfLL th 8t" .st a few J re? tered 'it. Thev iKthJLZhii ndkerchiefs on oherv one nf thern - : ' th Jf'rroijtidiDgs well Sly r" lli:hu- ' 'JP au, .ltn" e-r,rp-..ed ?' Wi,i;e of thc Mailant.a, aer . L pa8wd- turvo, that ?d that he looM at ; "f h? T hy c'n- had a aTh fa"e- 'Ascribed thair Lara:hpr talt ""'1 Him, L:,aa!f lUht mpleyion J,J,PharIy sharj nose, - - ;vr ;;' r'1 and tk nre" rif'if": nf the e erar or, the -id'; of h: PjBjM and neck, and that the build, i sir and abearance of that man aud ' the applicant were alike. Jhe jfave uch a particular and j mumte description that with it the ap-j ap-j . k:.;. anioni; many, could well be ; identified. Nlanv men have Sight hair and are tail and slim. That is a de ! script ion not uncommon of others; but ! the peculiarly sharp nose and sharp face aaul larire nostrils of the appli-j appli-j cant and the scar on his face and : neck gave him most pronounced and un-! un-! usual marks of identification, and fea tures which may not readily be mis- taken for another. Sought Doctor's Aid. I In addition to that the applicant, ' about two hours after the commission of ; tne murder, nod about two and one-. one-. half aai.es iroui the place of the bomi-I bomi-I tide, was found seeking aid at a doc- tor s. office for a fresh gunshot wound through his lungs aud chest. He was in a condition about to collapse because , of loss of blood. He volunteered to the ' doetors who attended him that he ' had ; haul a quarrel with someone over a woman and that in the quarrel he was , shot. and that he was as much to blame as the other fellow and wanted lit kept quiet; kept private." He then had a gun in his possession. I which, when he was dressing after the , wound had been attonded. dropped from 1 his clothes to the floor. Tb physicians testified that ia their opinion the ap , , rlicant 's wound ra produced by a bul-; bul-; let shot from a J8& caliber gun. " It was I also shown that the gun which lay 'near the outstretched hand of the deceased's de-ceased's eon. with oce chamber fresh-lv fresh-lv discharged, and with which be had , shot one of the assailants, was a .3v ! caliber guo. Om of the testators, in bis automobile, automo-bile, took the applirant to -Murray, a ' town five miles south of tbe place of the homicide, and there fr him with I bis friends. On the way there the ap plicant threw bis gun awav. As tbey ; approached the house to vtich h was "being taken b requested the doctor to turn down the lights of the automobile, ( and ?8 tier drew nearer he gave two ; shrill, penetrating whistles. He was ar-! ar-! rested two or three days thereafter. Gave No Information. I The officer then told him that If be J would disclose the place and the eireaim-1 f stances under wnicb be received hia ! wound, aud if the facts were, as stated him to the physician, h-i would be ; given his liberty. Ife declined to give j the of ficer my i n ffr mat iou whatever. There thus, as disclosed by the opin-' opin-' ion of tbe court and by the record, is i good evidence to connect the applicant , with the commission of the murder. Tbe applicant was not a witness in t this cane. And. other than what ho stated to the physicians, gave no cx-j cx-j planation whatever to show where or the circumstances under which he re-I re-I ceived the gunshot wound. He made i no offer or attempt to prove anything of that kind at the trial, nor did he oilier oi-lier any evidence whatever to show his I movements, whereabouts, or doings, on ! the night of thc homicide. All these at i all times have been withheld by him, J Tt was also contended before thc BU-; I preTne court that the applicant had not , bad a fair trial in the particular, as j claimed in one breath, that be was not i represented by counsel, in tbe next, that he was not permitted to conduct bis defense alone and in person without counsel. These matters are aUo fullv and in detail referred to and set forth in the opinion. Tbey show that the applicant, was represented by two counsel coun-sel of his own selection and hire. Demands Discharge. When the state was about half through its cae the defendant, without aoj warning or notice to his counsel, arose before the court and jury' and in a most unseemly manner, and wholly without cause, demanded that his roun-lel roun-lel be summarily discharged and that he be permitted "to conduct his defense in person and without counsel. The court advised him that he bad the riht to discharge hia counsel and himself to examine witnesses and to conduct his defense. But tbe court further stated that be would request his counsel to remain re-main and safeguard and protect his rights and interests. olloquieu were had between the court, tbe defendant and his counsel, wh-.n the trial wan suspended to enable counsel to consult with the defendant and his friends. That was just tdiortly before adjournment for the noon hour. As a result of such consultation hefc defendant and his counsel returned '"to court, whn his counsel announced that wu will proceed to act in behalf of the d-fondant d-fondant on the court's appointment, un made to that teatimony by counsel, nor I did they in any manner offer or at , tempt to review the evidence, or to in Data the board wherein or for wha. reason tbe evidence did not support tht- cODvictioii, or that tbe conviction rest . fed alone upon cireumhtatitial evidence.: . Indeed, counsel, before the board, for i some reason, avoided all referencee to 1 tbe real facts of the cae, and as dis- i I closed by the record, and ic such re- I i apart conf uted themselves with fervid exhortations on tbe horror ef an exe-I exe-I cutlun on circumstantial evidence and j wit.i unwarranted assaults on the good , ; nan.es of the states of ftab and tolo rado. It further wat contended before tho . i board that the applicant na denied i representation by counsel. As to tliat. we may here say, as was said by the : supreme court upon a review of thc whole matter, that "under all the cir-I cir-I eumstances, the argument in one breath 1 that the defendant was denied hia .-on- : stitutional right to appear and defend ! in person and in the next was procced-I procced-I ed against without counsel is as ground-I ground-I leas as was senseless the defendant 's action in discharging his counsel in the forenoon arid re-employing or re-engaging them in the afternoon.' Misconstrue Opinion. J CoVBBSaj also, before the board, in ' atrtSeiam of the supreme court, contend-i contend-i Oil ti nt it in its opinion had held that , the failure of the apjdu-ant to be a ; witness on the trial ot the aaae before j ! the district court was a circumstance to j I be considered againsL him and as au in- i j ference of gjilt. Notwithstanding coun- i nel were told that thev had miscon-reived miscon-reived the opinion and did not properly reflect it. thev, nevertheless, impatient'- j j ly persisted in their misconception aud i misconstruction of the opinion, and ar 1 ' gued, as though this board woie lothed .with power to review and correct what ; counsel chose to asserl were errors of : law of the supreme court. Thev were asked why, if thev were I in good faith in their contention, ' it was they had not filed a petition in the supreme court for a rehearing. No I answer was made to this and no reason given for thir failure, to do that, - Copt that one counsel was in Denver and that he had left the matter in hands of counsel in 8alt Lake i ty. prom the fact that no petition was filed, when j counsel had every opportunity to do so, j I it may well be presumed that they I thought there was no just or meritorious ground on which to ask a rehearing. Reference also was made to the applicant ap-plicant 's alleged attitude in protecting the honor of a woman. This, because of the teatimony of the doctor that the applicant had told him that he bad received re-ceived the gunshot wound in a quarrel over a woman, in which he "was to blsuue a.-: mneh as the other feflow.", Here it may be well to note that there j was good evidence adduced by the state to show that the applicant received his gunshot wound in tho store at the time of the homicide. Evidence of Claim. Neither at the trial nor before this board was there any evidence what- ever adduced to show the contrary-; nor was there anything offered on behalf of thrt applicant to show where, or in what manner, or under whal circumstances circum-stances he received the wound. There was, of course, the testimony of the doctor doc-tor that the applicant had stated to him ; that he had received the wound in n I quarrel Over a woman. But that was ! not 'he evidence of the fact. It was but evidence of bis claim, of his declaration. dec-laration. Suppose hi' had said to the doctor that he accidentally had shot himself. T'lat would bis but evidence of such claim, of such contention. Kut such an extra-judicial, self-serving and unsworn un-sworn declaration would be no evidence of the fact that the wound was caused in such manner. So here. If the applicant ap-plicant claimed that the wound was produced in a quarrel over a woman, then it was his duty, and he was af forded full opportunity, to bring forward for-ward something to support it. lie cannot can-not ash anyone to believe his claim with no evidence whatever to Hiippopt it and with no effort or attempt, even 'to produce pro-duce fir t iirnidi any. Hence it is time enough to consider the applicant's alleged attitude in pro tecting the honor of some woman when there is some evidence to show that he received in- wound at some place other than at the place of the homicide. Hia mere general, extra judicial, self-eerv-icg and unsworn statement to the doctor doc-tor that he received the wound at some undisclosed place, in a quarrel with some unnamed and undeacribed man over some unnamed and unde&cribed woman, is so vague and lax at even not to present an issue, much less can it be accepted as evidence of the fact. Vayue Statement. Further, his declaration to the doctor doc-tor does not even imply that thc honor of a woman was involved. He but said that ' he had had a quarrel with some-"mc some-"mc otsk i woman and that iu the quarrel quar-rel he was shot.'' A quarrel between two men over a woman may or may not Involve her honor. Tt depends upon what the quarrel is about. Vet upon this weird, vague and self-seMing statement, state-ment, wholly unsupported bv anv evidence, evi-dence, the board was in effeci 'asked to rnak a finding that the applicant was shot in a quarrel over some un known woman at some unknown place and by some unknown man, and to ignore ig-nore all the evidence adduced at the trial and in the record that he was shot in. the Ftore at the time of the homicide. homi-cide. Vhcr. counsel concluded their argument, argu-ment, without any attempt even to point out in what particular thev claimed the evidence was Insufficient to connect the applicant with the commission com-mission of the offense: without giving or offering anything as to the character, charac-ter, morals, habits or past life of the applicant, or as to who or what he is or was. Or where be lived, or what he had done; without attempting to offer anything pew or additional in the case, or any new information, or anything in his favor, or where he was " or v, hat he did on the night of tbe homicide, the chairman of the board Jssked the applicant appli-cant if he desired to make any statement state-ment or to say anything in his own behalf. be-half. His reply was that he would not give the board any information, nor make any statement, until he was first granted a new trial, and that then be, on such new trial, would prove his innocence in-nocence and send several perjurers to tbe penitentiary, where, as be said, they belonged. Meaning Unknown. What, or whom he meant bv the statement state-ment be did not disclose. Sfor did be disclose or attempt to offer to disclose what, if anything, wore he granted a new trial, be would or could produce or prove, nor did he in any manner even indicate or intimate the nature oi character char-acter of such proof. He was informed that the board was not clothed with power to grant him a new trial; that all by way of favorable action that it could do was to grant a pardon or to commute tbe sentence. He stated that he did not want either a pardon or a commutation of sentence; that, what he wanted was a new trial and an acquittal ac-quittal by a jury. He was asked why he did not make his defense and nut in his evidence on the trial. His reply was that he thought the law presumed him innocent and that he would not he convicted on the evidence which was adduced against .hint. He again was told that the board -was powerless to grant him a new trial and that a pardon would be equivalent to an acquittal, and that, at this hearing hear-ing was his opportunity to say or show whatever ho desired to sav or show. 1 1 is counsel were asked if they desired de-sired to ask him any questions or if there was anything that they desired to show him. They replied in the negative. nega-tive. The applicant t hen was asked if he wou'd be willing that any member of the board asb him quest ions, which he might answer or decline to answer, a he saw fit. He replied that unless the boa rd first gra uted him a new trial he was mm ill ing thati any que? ti one. be usked him or to make answer to anv. His counsel were asked if they had informed in-formed anil advised him that the board could not grant him a new trinl ami that if he desired to say or show anything any-thing in his behnif he was required to sav or show it at this hearing. Thev replied that thev had so adviseI him. and had requested him to make a statement and to tell the board what HILLSTROM CASE REVIEWED STATEMENT IS MADE PUBLIC BY PARDON BOARD Members of Supreme Body of State Detail Reasons for Refusing Commutation. Com-mutation. (Continued from Preceding Page.) the defendant called at a Dr. McHugh's office on Fourteenth South and State streets, abouL two and one-half miles flouth of the place of the homicide, and about midway between the place of the homicide and Murray. The doctor had lust retired. He was called to his office by t-he defendant ringing the bell. The doctor was acquainted with him and had known him as "Joe Hill." Upon the doctor doc-tor entering the office and asking what the trouble was, the defendant replied tha t he wa s shot, and stated : "I wish this kept private." The doctor removed I the defendant's clothes, and found him suffering from a gunshot wound through the chest and lungs. As the doctor describes de-scribes it: "The bullet entered a little lit-tle below and a little to the outer side of the nipple line, ranging upward, backward back-ward and outward, and emerged a little lit-tle below the interior angle of the scapula." sca-pula." In Serious Condition. He found the defendant's undershirt and shirt saturated with blood and the defendant in a weakened condition, almost al-most ready to collapse, from loss of blood. As the doctor was attending the defendant, defen-dant, a Dr. Bird, residing at Murray, passing Dr. McHugh's office, and seeing a light in the office, stopper! to see Dr. McHugh on other matters. Dr. Bird also saw the wound. The bullet had gone clear through t he defendant's body a-nd clothes and was missing. From the appearance ap-pearance of the wound the doctors gave it as their opinion that the bullet causing caus-ing the wound was shot from a 3S-caIiber gun. They further testified that such a wound would cause internal hemorrhages, coughing and spitting of hlood. After the wound was attended the doctors assisted as-sisted the defendant in dressing. In doing do-ing that a revolver in a holster with shoulder straps fell from the defendant's clothes to the floor. Dr. McHugh picked it up and handed it to the defendant. He nut It in his coat pocket. The doctors saw hut the handle of tha gun sticking out of the holster. From the appearance of the handle they gave U as their opinion that the gun was a 38-caliber automatic gun. and that the handle was similar to a Colt's automatic 38 gr.n exhibited to them. Story of Hillstrom. While the defendant was there at the office he tokl the doctors that "he had had a quarrel with someone over a woman, wom-an, and that in the quarrel he was shot, and that he was as much to blame as the other fellow, and wanted it kept quiet, kept private." That was all that was l. said by him concerning the manner In it which he received the wound. That w-s volunteered by him. The doctors did not ask him anything concerning the place nor the circumstances or particulars under un-der which he received it, nor did the defendant tell them anything further about it. After the wound was dressed it and the defendant ready to leave Dr. M, McHugh asked Dr. Bird to take the defendant de-fendant in Dr. Bird's automobile to the 3 Eseliuses. As Dr. Bird and the defendant ap- W proached the Eselius place the defendant requested the doctor to turn down the f. lights of the automobile. Dr. Bird did I so. As they n eared the house the defendant, de-fendant, "with a combination of the teeth, tongue and lips, gave two shrill, penetrating whistles." Dr. Bird assisted the defendant to the kitchen or back door. As the defendant and Dr. Bird entered "a number of men seemed to have just eone from the back room that we first entered Into the next room, and all were standing or walking in that direction as we entered the door, and turned and ree-ognized ree-ognized the defendant, and, seeing him ' with me, expressed surprise, and asked if he was hurt." Assisted to a Cot. The doctor assisted the defendant to a cot into an adjoining room, and there left him sitting on the cot. Two or three days after that the defendant was arrested. m In his room on a table was found a red r. bandana handkerchief similar to that ' worn by the assailants. The defendant's coat and clothing worn by him on the night of the homicide were seized and put In evidence. They were similar In appearance to those worn by the taller assailant. One of the officers asked the defendant where his gun was. He told him that Dr. Bird, on the way from Dr. McHugh's office to the Eseliuses, had trouble with his automobile, and as Dr. L Bird got out to crank H the defendant p threw the gun away. No gun was found. The defendant was not a witness In the r. case, and at no time explained or of-l' of-l' fered to explain the place where, nor the circumstances under which, he received his wound, except as stated by him to the doctors, that he received it In a quarrel over a woman; nor did he offer any evidence evi-dence whatever to show his whereabouts or movements on the night of the homicide. homi-cide. Men Are Described. A Mrs. Seefey, living about a block from the deceased's store, testified that she and her husband, returning from uptown Just . a few minutes prior to the homicide, passed the store and saw the deceased and his two sons in the store. As they crossed Jefferson street they met two men with red bandana handkerchiefs tied around their necks. One of the men was J tall and slender. In passing they crowded "n her off the sidewalk. She turned and ; looked at them. The taller turned and looked at her. She gave this description I of him: "By the district attorney: Q. Did this rnaji that turned, the taller of the two, L did he look directly at you? A. Yes. Q. And did you look directly at him? A. Yea. Q. Did you notice anything peculiar about the features of the face of the man that turned at that time and looked at you after you had Just been crowded off the sidewalk? A. Yes. Q. T wish you would Just tell in your own way, Mrs. 5eeley. what there was about the face of that man that attracted you. A. Well, his face was real thin; he had a sharp nose, and rather large nostrils. He had a defection on the side of bis face or neck. Q. On the side of the face or neck? A. Right here on his face. Q. What do you mean by that apparently a near? A. Yes; It looked as though it P might be a scar. Q. Arid you observed that? A. Yes, sir. ' Q. Did the nose appear to be particularly sharp that you saw on the tall man there at K that time? A. Yes. O. And the nostrils were peculiar? A. Yes; the gentleman that I met was a sharp-faced man with a roal sharp nose, and his nostrils were , rather large." Further Questions. The witness, after testifying that she saw and observed the defendant shortly after his arrest, was further asked: "Q. How does the height of the defendant de-fendant com pa re with the height of the man that turned and looked at you? A. Very much the same Q. How docs the nose of Mr. Hillstrom compare with the nose of the man you looked at there? A. Very much the same. Q. How do the marks, especially upon the left-hand sid" of his face and neck, that you have had an opportunity to obseive, correspond with the marks on the man that you saw there at that time? A. Well, they look a Kreat deal alike to me. as on the same man that I saw." The witness at the preliminary examination exam-ination and on cross-examination testified testi-fied that she would not say positively that the defendant was that man, and that she had an honest doubt as to whether whe-ther they were the same person. Merlin testified that the size of the defendant was similar to that of the tall man who entered the store, but he, too, would not testify that It was the same man. The witnesses who saw the taller of the two men run out of the store and to The alley, and heard him exclaim, "Oh. Boh" and "I am shot," testified that they saw the defendant shortly after his arrest and heard him talk, and that his appearance and voice were similar to that man. One of them testified that he was "exactly the same." Shooting Discussed. When the defendant stood erect with his coat on and his arms down 'the bullet hole where the bullet entered the coat was four inches lower than the wound where the bullet entered his body. From this it is argued by defendant's counsel that the defendant received the shot causing caus-ing his wound when his hand and arm were raised above his head drawing his coat up, and that the arms of the assailant as-sailant In the store were at no time in such a position, and therefore the defendant's defen-dant's wound was not received In the store. Such an argument does not demonstrate that the defendant was not the man who was shot in the store by Arling. At most, it is but an Inference of fact, which, and the weight of it, were for the Jury. That Arling shot one of the assailants In the store is sufficiently shown: Indeed, that fact is not seriously controverted. But no one at that moment saw either the assailant or Arling. In what position Arling was when he shot or the assailant when he received the shot is not disclosed. dis-closed. Counsel, In oral argument, told us that that was very clearly shown; but the record does not support the contention. conten-tion. It clearly and without dispute supports sup-ports the contrary. As already shown, the only living witness to the homicide was Merlin. When the second shot was fired at the deceased, and the assailant directed his attention towards the ice chest. Merlin retreated lo the storeroom. Shots were fired after that, but he while In the storeroom could not see either Arling Ar-ling or the assailant, and did not know that Arling had taken the gun from the ice chest or had discharged it until the assailants had fled. Nonexisting Premises. Thus counsel base a positive conclusion upon non-existing premises, at least upon premises wholly conjectural and speculative the position the assailant or Arling was In at the time the former was shot. The argument that, the defendant, If he was one of the assailants, must, when he was shot, have been in the middle mid-dle of the room with his hands raised above his head. Is not the only deducible inference. It is shown that when the assailants as-sailants entered the store Arling was sweeping near the Ice chest, in which lay tlie deceased's revolver. On the record, when the assailants entered en-tered and began shooting the deceased, it can be inferred that Arling rushed to the Ice chest for the revolver, and as he reached for It he either was shot, or was shot at. for one bullet mark was found on the inside of the chest where was the revolver. It can further be inferred in-ferred that he got the revolver and ran or fell behind the counter where his dead body and gun were founa, a short distance dis-tance from the chest. One bullet hole was -clear through his body and straight down through the floor, showing- that the assailant, when he fired that shot, leaned or reached over the counter while Arling was down on the floor behind the counter. Inference Is Made. It also can be inferred that Arling may have shot the assailant as the latter was leaning and reaching over the counter, which position would account for the upraised arm and coat of the defendant and the course the bullet took through his coat and body. That, of course, is but an inference, but it la as probable as the argument of counsel that the defendant, de-fendant, when he was shot, must have had his hands in the air above his head. Then, too, much depends upon the cut and fit of the defendant's coat. Some coats are so cut and fit at the armpit that to raise the arm does not much disturb the body of the coat. Other coats are so cut and fit that to raise the arms draws the body of an unbuttoned coat up very ihaterlally, even though the outstretched hand Is raised but level with the face. Then the defendant at the time he was shot might have been In a stooping or crouching position with his arm raised, or, seeing the gun in the hands of Arling, might have instinctively thrown his arm and hand up as the shot was fired. Other instances and positions may be conceived con-ceived to account for the bullet hole in the coat four inches lower than the wound where the bullet entered tbe defendant's de-fendant's body. But all this s mere matter of inference and argument, and was for the jury. Arguments Answered. It is further claimed that no bullet shot from the deceased's gun was found In the store, and that all the bullets which were found were fired from the guns of the assailants, from which, and from the further fact that the bullet which produced the defendant's wound went clear through his body, it is argued that it was not the defendant, but another, an-other, who was shot In tho store by Arling, and who was not shot through the body, but carried away the bullet lodged somewhere in his body. These also arc positive conclusions based on but conjectural or speculative premises, arguing things certain from other things uncertain. Such argument is proper enough adddessed to a jury; but it lias no foundation when addressed to a court to conclusively overcome and repel all other facts and circumstances tending to point to the defendant as the perpetrator perpe-trator of the crime. Evidence also was given to show that the red bandana handkerchief found In the defendant's room at the. time of his arrest was given him by Mrs. Eselius the next morning after the defendant was shot, and that he was not possessed of it on the night of the homicide. Mrs. Eselius testified to that. Thp credibility and weight of her testimony were for the Jury, not for us. Weight of Testimony. The sta te produced a witness who, shortly after the homicide, examined the gun found by the body of Arling, and who testified that, in his opinion, the gun was discharged within an hour prior to the time he examined it. The defendant defend-ant produced a witness who testified: "It would be impossible to tell with any degree of accuracy when a cartridge in a revolver whs exploded." It is argued that the defendant's witness wit-ness showed greater knowledge of, and more familiarity with, the subject. Again, that was mere weight for the jury. We think it of little consequence, for, as already al-ready observed, we think there is ample evidence to show that one of the assailants assail-ants was shot in the store by A rllng. and that he shot him with the sun found by A rllng's body. Evidence was also given to show that about four blocks west of the place of the homicide dog tracks stained with blood were found the next morning, which, when followed up, led to a dog with a sore foot: but that was not connected In any manner with the blood found on the sidewalk and in the alley near the place of the homicide, and was wholly different from the spatter of blood found on t lie sidewalk. How Guns Are Used. Further evidence was Riven lo show, that the deceased prior to bis engaging in the grocery business was a member of the police force, and "that all the re- I vol vers on the police department have six chambers; they are loaded with five cartridges, and the sixth one is empty, and the hammer rests on the sixth chamber." cham-ber." This and the testimony of the witness that It could not he told when a cartridge was exploded were offered to show that the gun f o u nd near Arling was not discharged by him, and hence thai neither of the assailants was shot. The probative effect of thai was for the jury. it cannot, as matter of law, be said to overcome and to conclusively repel all the other evidence showing that just prior to the homicide a'l the chambers of the gun were loaded, that, immediately thereafter the gun was found on the floor, not with an empty chamber, but a chamber containing an exploded cartridge, car-tridge, and other evidence showing that Arling with that gun shot one of the assailants as-sailants in the store. Sees Man Take Car. Another witness testified that at about 11;30 o'clock on the night of the homicide homi-cide he saw two men about eight blocks (more than a mile) west of the place of the homicide, one taller than the other, and as he approached them, a block or more away, he saw tho taller fall or He down on the ground. The witness testified testi-fied that he walked up to him, and saw him lying on his side, moaning and groan -i ng, with his head raised on his elbow. The witness observed him but a moment, and without saying anything to him walked away. The man on the ground arose and followed him for a block, where the witness saw him board a street car. The conductor of the street car testified testi-fied that a tall man, "acting susplclous-.ly," susplclous-.ly," at that time and at that place boarded the car. The conductor thought he was drunk. He rode with him uptown, up-town, and there left the car. Both witnesses wit-nesses testified that the man was not the defendant. This was offered to sljow that that man was suffering from a gunshot wound, and that he was the man who was shot in the store by Arling.- The testimony has little relevancy. No one claimed that that man was the defendant; nor was it claimed that the defendant that night was in that neighborhood. neigh-borhood. The state claimed, and produced pro-duced evidence to support the claim, that the defendant then was at or near the doc-tor's office on Fourteenth South receiving attention for a serious gunshot wound. Testimony Not Conclusive. Testimony that on that night after the homicide one answering the description of one of the assailants in the store was found at Eighth West street suffering from a gunshot wound would have had probative effect; but the defendant did not prove that the man seen at Eighth West street was suffering from a gunshot wound, or any wound. That a man, after the homicide, was seen a mile or more from the place of the homicide, moaning and groaning on the ground and appearing to be drunk, and, acting strangely, boa I'd ed a street car, proves little, if anything. Sufferers may moan and groan from gunshot wounds. But all who moan and groan are not. shot. But the claim of insufficiency of the evidence is chiefly based on the fact that none of the witnesses who saw the assailant as-sailant at or about the store on the night of the homicide testified positively that the defendant was one of them; and for that reason it is argued that the case is do stronger than me case of Stale versus Hill, 44 Utah. 7D, 138 Pac. 1149. where the evidence was held insufficient to connect the accused with the commission com-mission of that offense. Cases Are Dissimilar. We think the cases on, the facts dissimilar. dis-similar. The testimony of Merlin that one of the perpetrators of the crime was about the same size as that of the defendant, de-fendant, had about the same shaped head, and wore about the same clothes as were shown the defendant wore that night is alone not sufficient. But there Is the testimony of the witnesses who saw the taller of the two assailants, in size answering the description of the defendant, de-fendant, run out of the store, heard his voice, and that the vice, size, and appearance ap-pearance of that man were similar to those of the defendant. Though it be conceded that that also was insufficient, stIH there is the further fur-ther testimony of the witness who but a few minutes prior to, the homicide, close to one of the assailants, in a bright light nearly as light as day, looked him directly in the face. Her attention was particularly attracted to him because of the incident crowding her off. the sidewalk. side-walk. That man and the defendant, as testified to by her, were similar in size and features, had the same slim face, sharp nose, and large nostrils, and the same "defection" or scar on the side of the face and neck. True, that witness would not testify positively that the defendant de-fendant was that man; hut the facts testified tes-tified to by her as to the descrfplion of that man pointed most strikingly to the defendant, and may be entitled to as much or more weight than had the witness, wit-ness, without such description, but testified testi-fied that. In her opinion or judgment, the defendant was that man. Most Important Clew. In addition to all this was tha fresh bullet wound on the defendant. That wound, unexplained, or unsatisfactorily explained by him, was. In connection with other evidence, that one of the perpetrators perpetra-tors of the crime answering the defendant's defend-ant's description was shot In the store, a relevant mark of Identification, especially espe-cially in light of the defendant's effort to have the fact of his wound concealed, and In view of his statement that he threw his gun away, of his request that the lights of the automobile be turned down, and of no apparent good reason for his giving two sharp penetrating whistles beforo he entered the Eselius house with Dr. Bird. Gunshot wounds such as had the defendant de-fendant are unusual and extraordinary. Under all the circumstances the defendant's defend-ant's wound, unexplained, was quite as much a distinguishing mark as though one of the assailants In the assault had one of his cars chopped off. The only explanation the defendant gave of his wound was that he received it at some undisclosed place in a quarrel with some undescribed man over some undescribed woman, In which he "was to blame as much as the other fellow." Important Evidence. With other evidence in the case, that unexplained or unsatisfactorily explained wound might, to the triers of facts, point with as much certainty to the defendant as one of the perpetrators of the offense as though that night at 11:30 or 12 o'clock some stolen and identified article from the store had been found In his unexplained un-explained or unsatisfactorily explained possession. One suffering from such a wound as did the defendant a wound of such serious and oft-fatal consequences ordinarily does not walk around the country seeking surgical aid until, from loss of blood, he Is about to collapse. Generally such aid Is promptlv summoned sum-moned and brought to such a sufferer. The defendant himself, in the cross-examination cross-examination of one of the state's witnesses, wit-nesses, an officer, brought out the fact that tho officer, after the defendant's arrest, ar-rest, stated to him that if the defendant would tell him the place where and the circumstances under which he received his wound, so that the officer could investigate investi-gate the fats In such respect, and if true that the defendant received his wound In a quarrel over a woman, he would be given his Liberty. The defendant declined to give the officer any Information, Informa-tion, or to make any statement whatever respecting such matter, except that he threw his gun away as Dr. Bird was taking him from Dr. McHugh's office to the Eseliuses. Not an Admission. The defendant, of course, was not required re-quired to make any Statement to the officer. offi-cer. HI refusal to make any or to answer any question '-annol . t hough the fact was brought out by tiie defendant , be considered as an admission of guilt. He had a right to remain silent. Nor can bis neglect or refusal to be a witness In any manner prejudice him or be used against him. The state, as In all other criminal cases, was required to prove the defendant's guilt beyond a reasonable doubt. But the defendant, without some proof tending to rebut I hem. may not avoid the natural and reasonable inferences infer-ences deducible from proven facts by merely declining to stay off the stand or remaining silent. If in case of larceny the theft and the unexplained or unsatisfactorily explained recent possession of the stolen property in the accused are shown, he may not avoid the natural inference deducible from such facts that he is the thief by remaining re-maining silent or staying off the stand, and offering no proof to rebut such inference. in-ference. Here the commission of the offense of-fense Is proved beyond all doubt. That is conceded. Other Facts Shown. Other facts also are shown from which natural and reasonable inferences arise that the defendant was one of, and the active, perpetrator of the offense. The probative effect of them and the natural and reasonable inferences deducible from them cannot be avoided by the defendant remaining silent or refusing to take the stand and offering no proof lo rebut them. Wiiile the proven facts and inferences against him are neither strengthened nor weakened by his mere silence or failure to take the stand, yet when he, with peculiar knowledge of facts remains silent, si-lent, or has evidence in hjs power by which he may repel or rebut such proven facts and inferences, and chooses not to avail himself of it, lie must suffer' the consequences of whatever the facts and Inferences adduced against him tend fairly and reasonably to prove. Evidence Held Sufficient. We think the evidence sufficient to justify a finding that the defendant was one of the perpetrators of the crime. To hold otherwise is to hold that the accused must be identified or connected with the commission of tiie offense by direct testimony testi-mony of eyewitnesses who unerringly arc able to testify positively and unequivocally unequiv-ocally that he was the perpetrator. There are many instances where the proof of identity rested wholly on circumstantial circumstan-tial evidence, as was tho case in State vs. Mortensen, 26 Utah, 312, 73 Pac. 562, 633; State vs. Slrmay, 4U Utah, 525, 122 Pac. 74S; Stale vs. Inlow, 44 Utah, 4S5, 141 Pac. 530. Here there is testimony of eyewitnesses and circumstances pointing point-ing to the Identity of the defendant. Against that evidence to hold that there is no evidence to connect him with the comndssion of the offense is to ignore the record. To do what counsel, both by brief and in oral argument, In effect have asked us lo do, place ourselves In the jury box, weigh the evidence, determine the credibility of witnesses, consider' their opportunity and means of observation, and the reliability and worthiness of their testimony, is to Ignore the law and to usurp a function not possessed by us. Import of Argument. And yet the Import of their argument, especially the oral argument, is on mere weight and worthiness of toytlmony, arguments ar-guments such as the witnesses had not positively identified the defendant and had not sufficient means or opportunity of observing and giving a reliable description de-scription of the assailants; that of dls-orepa dls-orepa odes as to the description of the hat and clothes worn by one of them; ijh&l the defendant was not shot in the stor.e, because the bullet hole In his coat was four inches lower than the wound on his body, and because no bullet shot from the gun near the outstretched hand of Arling's body was found; that because of the custom of police officers to carry car-ry guns with the hammer resting on an empty chamber, and because of the testimony tes-timony of the defendant's witness that it could not with accuracy be told when an empty cartridge was exploded, the gun found near Arling's body was not discharged by him ; that the blood found on the sidewalk and In the alley was from a dng; that tho ma n found moaning moan-ing and groaning al Eighth West streft was the man shot by Arling; that t!) I handkerchief found In defendant's ropin was given him the day artcr he was shct. and that no motive was shown for the defendant to mask himself and with gun In hand to enter the store and shoot to death his victim, with whom It was not shown he had any acquaintance- All i tliii. It is contended, when properly considered con-sidered and weighed, 80 clearly repelled ' whatever testimony there may ho to point to the defendant's guilt as to leave no evidence to connect him with the eom- mission of the offense It is apparent all this was for the jury. Question of Motive. With this conclusion it Is unnecessary to inquire Into the question of motive. From the" proven facts of the homicide it is clear the assailants entered the store to commit murder or robbery. It Is im- material which view is taken of that. Slate vs. Thome, 39 Utah, 208, 117 Pac. 58. Since the evidence is sufficient to show that the defendant was one of the perpetrators who, with his face masked and gun in hand, entered the store and deliberately shot his victim to death, it is immaterial to inquire whether the motive was assassination or robbery. Nothing but a wicked motive emanating from a depraved and malignant heart is attribute attrib-ute ble to the commission of such a crime as is here Indisputably shown. The defendant was represented by two counsel of his own selection and hire. When the state was about lialf through with Its side of the case, and at the conclusion con-clusion of the direct examination of a chemist by whom it was shown that the blood found on the sidewalk was of mammalian mam-malian origin, and upon the witness being be-ing tendered for cross-examination, the defendant, without any warning to his counsel, and to their complete surprise, arose and addressed the court: "May I say a few words?" The Court You have a right to be heard in your own behalf. The Defendant I have three prosecuting prosecut-ing attorneys here, and I Intend to get rid of two of them. Interrupted by Court. Addressing his counsel, ho said to them: "You sit over there; you are fired, too, see. And there Is something I don't understand un-derstand " The Court (interrupting) You need not carry out in detail any difference you may have with counsel, if any. Defendant I wish to announce I have discharged my counsel, my two lawyers. His Counsel If you have discharged us, that is all there is to it. 'J? he Defendant If the court will permit, per-mit, I will act as my own attorney after this, and cross-examine all the witnesses, and I think I will make a good Job of it. As far as the district attorney is concerned, con-cerned, I think we will get along fine; he comes right out in the middle of the road. I know where he is at. These fellows fel-lows here (his counsel V, I think I can get along very nicely without them; they are dismissed. Can I act as my own attorney at-torney in this case, and cross-examine all ihe witnesses, and will I have the right to withdraw any witness who has been on .the statnd here? Bring buckets of blood for all I care; I intend to prove a whole lot of things here: I will prove these records here of the preliminary-hearing preliminary-hearing are the rankest kind of fake. Tlat is what I will prove. And I will prove a whole lot of other things. I will prove that I was not at that store Attorney Takes Hand. The district attorney interrupted, and suggested that the defendant at the proper time would have an opportunity to make a full statement. Further colloquy followed, when the district uitomev, addressing ad-dressing the defendant, stated; "I will pause a moment and give you an opportunity to cross-examine the witness." wit-ness." Counsel for defendant stated that before they retired they desired to sav that they had no difference whatever with the defendant, de-fendant, and that his action was entirely entire-ly unexpected. The court stated: "1 think until further order counsel who have been representing the defendant may proceed. If the court Is satisfied that the defendant really knows his own mind, of course, he has a right to discharge dis-charge his counsel if he prefers to do that" and requested counsel to proceed with the rroPs-ea.mlmvfIon. The Defendant Haven't T a right to discharge my own counsel? The Court-The court will make due Inquiry Into that. Mr. Hillstrom; pnfl If the court Is convinced thai you really moan what you say, the court will accord ac-cord you that right. Reiterates Intention. The defendant replied: "I mean what I say." Tho Court At present counsel ma v proceed; the defendant may also cross-examine cross-examine this witness if ho desires The Defendant Without mv permission? permis-sion? The court thereupon directed the defendant de-fendant to be seated, and said lo him; "The court will give, you an opportunity opportu-nity if you want to cross-examine this witness after counsel who have boon representing you have concluded " Defendant stated the witness was a scientific man and needed no cross-examination, and that "he wouldn't tell anything any-thing hut the truth." When one of the defendants rounsel began ihe cross-ex- amfnation. the defendant, addressing counsel, stated: "I told you to get out of that door." His Counsel I am acting under the court's instruction ; I think you are a little beside yourself, at present. The Defendant t am the defendant in this case; I have got something to say. His Counsel I will talk with you later. Counsel Proceeds. Thereupon one of his counsel cross-examined the witness, and then the witness was cross-examined by the defendant himself. At the conclusion of that examination ex-amination the court again requested counsel to remain "for the present at least, and to use your best efforts for the protection of the defendant's interest. inter-est. You w;il at least have the status of ainici curiae, and that the defendant also will have the right to cross-examine or examine witnesses, and to take any part in the trial that a defendant may under the constitution." Counsel for Defendant--From the defendant's de-fendant's statement he apparently was under the impression that we were representing rep-resenting the state as well as the district dis-trict attorney. We trust the court has not observed any such Indication. The court and district attorney both replied that they had not. When another witness was called, Mrs. Seeley, and on being examined by the state, and defendant's counsel Indicating some hesitation in making an objection to a question propounded by the district attorney, the court remarked that he wished counsel to make any objection they thought proper, and to safeguard the interests of the defendant, and then observed: ob-served: "I think the status better be made definite if counsel do not understand it." The Defendant Am I recognized as my own attorney here? The Court I will hear frdm you. The Defendant My counsel seem to be very insistent upon holding their job. The Court The court is going to look into that matter in a moment. The Defendant 1 wish you would. Defendant Again Heard. Thereupon the jury was directed to retire. re-tire. After it retired the defendant said: "There are some packages here; 1 would like to tako charge of them; they belong to the defense and are paid for. My counsel is discharged. I think T have the right to take these. I have friends right here to take charge of them now." The court told him that he had the right to take charge of them, and that he had the right to discharge his counsel. coun-sel. Upon inquiry from the court as to the defendant's mental condition, counsel coun-sel for the defendant stated that they had not observed any evidences of Insanity, except his recent conduct in court, and at HO time though that he was insane; that he for some reason unknown to them grew suspicious of, and lost confidence in. them, and thought they were in collusion with the state. The district attorney intimated in-timated that the defendant's conduct look?d like "a frame-up" to raise an issue of insanity. Defendant's counsel assured him that the defendant's conduct was as unexpected fo them as to Mm. and that no defense of Insanity was at any time discussed or thought of: that they hRd not intended, and did not intend, to present pre-sent any such Issue, and had not heard or observed anything to indicate that the defendant was insane. Insanity Disclaimed. "The defendant: There won't be no Insanity In-sanity pleas; I assure you of that; no brainstorm either; "The court (addressing the defendant): The court wishes to ask you, !n view of ihe statement you have iust made, yon realize it Is a remarkable proceeding H leasl to get up In the midst of a trial and discharge your counsel' "The defendant: Yes. sir. "The court: You realize that if there is not sufficient reason for discharging them that it would he quite difficult to get other counsel to go on with the case at this time: you know that, do vou not' "The defendant: I will act os my own counsel, and 1 am going to win this case w ithout counsel." Upon request of defendant's counsel, the court grained an intermission lo enable en-able them to confer with the defendant and his friends. Artcr such conference he defendant and his counsel returned In court. The latter, addressing the court : "Under Jio situation, we will proceed to act In behalf of the defendant on the court a appointment, unless tho court chooses to appoint someone else in our PhV-e. If the defendant wishes some oth- nr attorney appointed, we will da withdraw. f jtxMI Hostilities Cease. "The court (addressing the Welt According to the best infomatttt court has, and after affording ywq portunity to consult so as to piotf. rights, I see no reason, at pttta least, why the proceedings ihotf continue. "The district attorney: If I UEj.it the defendant now consents tint (i continue to represent him. Defendant: I want ths court s 3erstand that my position li final I not object to counsel remaining : courtroom: It Is none of my b' anybody can remain. "The court: I understand you it object to their asking question!, i tiie direction of the court, providin have an opportunity to examine ma yourself: is that your attitude? "The defendant: Tea: I will to the witnesses: if they want to lis can go ahead." Trial Is Resumed. Thereupon the jury KaU the ti lal resumed but a short tins, t the regular adjournment was ula the noon hour, and before the em tion of the witness Seeley ws te When the court convened in tfci noon, additional counsel append asked that his name, at the requeri defendant and of his friends, MI special request by wlra of an in at Denver, be entered as counielfl defendant. His name was enter from tlicnre on all three cotnw the defendant s counsel, represena tnd took part In all the prow" the end of the trial. Such counsel an-J the attorney frou have prosecuted the appeal I" fendant. From all this it is claimed court erred In appointing w counsel as amlci curiae after ue" ant had discharged them: In refoa defendant permission to conduct J in person and alone without am not taklire an adjournment at ow the defend.-int had discharged w sel. to enable him to procure M' sel. anil In proceeding agalfct fendant without counsel. Right Is Conceded. Let It. bo conceded thit the with or without cause, had m j discharge counsel of Ms own b and hire, and to defend in PJ?' was all he asked; that the court P He did not ask for othw -t time to procure other counKi-most counKi-most unseemly manner, who .. . cause, abruptly dcnuindedtMi sel be summarily discharged, l be permitted to conduct hie mow .-on. The court .granted ewJ"J defendant asked, except tm quested his counsel, as frMrt court, to vemain. and in j tec: and safeguard the rights fendant. That was ' "SSS It 19 not claimed that h' w been disloyal or unfaithful w Is it made to appear ''Z' done all that was proper "? K,, to be done in S m marlly discharged them Jj in the midst of tie "S""" J of the most important wiw . state - the examination or ith such damaging te elicited against him, the defendant to stumble jy assistance of $gw what he demanded, wo most cruel. The cf;whi5 counsel conducted ' an ss to say. that. Jrl ,i similarity be'"e,n, ,tottl he man she saw at WA moments eforehnt iS nevertheless bad ".nnafth.t whether thedefendan as i, not to testify rj'slt'y'V saw was the defendant. Defendant Is Aided. .,. mate's witnesse n stance elicited benefit to the " a tful with obleetlons lo j ad pre? .1'icstions TlttfS v.-r their uNhargejn (coutlnued on Folio ' EBT IS I public sy PAROON BOARD bcrs of Supreme Body J State Detail Reasons for Refusing Commutation. Com-mutation. iTanviWnK they did or said I Lihe noon hour, when they. In Pi. reemployed, or re-en- II (hf aefer.viani. In the forenoon, ' sunset and demanded that N"i?tiid to conduct his case In "iurt was required to let him P i he demanded, in which a Sse whore1 the dc-Vr-duiu's V "take the court would have hliw ted io iiueiroso on it JHroper objections for him. -rit hm aciinst all improper ILEut proceeding, or to appoint Mends of the court to safe- motact the defendant's lnter-- lnter-- Ftfffita its discretion, did the . u appointed the very coun- dMdant had discharged. Put fEffitad those whom it be-'LTef be-'LTef their familiarity with J traSr lovalty to the defendant. SSrfS his Innocence their proper m K Ss defense, could test serve ' f & interests. tion Is Denounced. -sjurt mav have though: they were BV5 called in. We think the It the proper ana most eommen- fSJJ: The defendant's conduct in Can of the court and the jury SEnto discharging his counsel was and uncaUed for, so ground - BsmkM &s to us trie co'rt S'roulrv as to his mental condi-IbSdj! condi-IbSdj! 'nothing to justify a ju-iSauirTas ju-iSauirTas to the defendant's In-b In-b v the conclusion that he was ir-' ir-' LTewri one disclaiming that, the fta- the benefit of the defendant. & his discharged counsel as ; htf the court to safeguard his in- mA it should be thought it was not Ffor th.e court to permit counsel ' rtvir discharge and until re-engaged ie" .Pendant to participate in the h hi the manner and for the or indicated, still, on the record, i-.-i'est that the defendant, with ;: olsfuce of such counsel, was bene-iad bene-iad not harmed. Under all the 7 sttiww, the argument in one breath defendant was denied his conceal con-ceal rigM to appear and defend in a, ifti in the next was proceeded - at without counsel. Is as groundless ni seKe'esa the defendant's action fang his counsel In the forenoon : rwniplojing, or re-engaging, them ( ifterooon. stion as to Transcript. iteH a physician of Salt Lake proceed by the state at he pre-: pre-: gorr examination, there testified con-l' con-l' fa r-insbot wounds found on the : fci the course of the bullets, and se of death, and expressed an opinion that the wound i wen produced by nutlets thot from a .88-oillbr nun. The Multite (Comp, Liin 1407, Bee. 4t7ol provide ttmr In oao of ImmteUln the U'sllmoMv at the iiiflliKinni v ,i ml mi t Urn 01 each wit nesa innm be reduoed to writ-InaT, writ-InaT, a depoHitlun bv the matst rnto, or under IiIh direction, and thai the magls-tntte. magls-tntte. with the eminent of the comity at torne. may order the losttmonv and' pro-OwUnfl pro-OwUnfl to he taken In short hand, wild for (hat purpose permits the uumtstrato to appoint a ntemgrftpl.H- who. if the defendant be bold to answer, la reemlred, within ten days thereafter, to transcribe Ins notes In longhand, and to certify and file the transcript with the countv clerk The statute further provides that the transcript so certified to and filed -ahull bo prima facie a correct statement of such testimony and proceedings," and (MOtlQn Mttxl) runv be "used at the trial with the. same force and effect" ns though the witness were present In court ami testifying, provided that It he satisfactorily shown to the court that the witness Is dead or insane "or ciin not with due diligence he found within the state." Admitted Over Objection. The trial begun on the 10th of June, LRU, About the 1st of June subpoenas were Issued by the state, among- them a subpoena tor the physician. The officer in whose hands the subpoenas were placed for service testified that he. on the 1st or 3rd of June, called at the doctor's house to servo him, hut found him out making a call, and that "the next time. I went, they told me that he was going to go on a trip, and heVure I could .got htm the next time he had gone, left tho state before I had subpoenaed him." On the Hth of dune, and at the trial, the transcript of the physician's testimony was offered in evidence by the state. U was made to appear that the witness then was out of tho state and In California, and had been in California since about the 3rd or 4th of June. It was not made lo appear when he would return, or when : was expected to return. The transcript of the testimony was received over the defendant's objections that due diligence had not been used to subpoena the witness wit-ness before he departed; that to admit the transcript was to deny the defendant "an opportunity to t ross-examlne the witness in the presence of this jury"; and that the certificate of the stenographer "did not agree with the testimony given, the certificate being t hat it was transcribed tran-scribed in longhand, and the evidence being to the contrary eft'ect." Just what is mear.t by this is not clear, unless that the notes were transcribed in typewriting, and not In "longhand." Other Objections. In addition to these objections. it also here Is urged that it was not shown that the testimony at the preliminary' examination ex-amination was taken in the presence of the defendant; that be in person, or by counsel, cross-examined the witness, or had an opportunity to do so; and that the testimony was not taken by an "of-cial "of-cial court stenographer." We do not see anything to any of these objections. The stenographer was called, and testified that he stenographically reported all the testimony giver, and proceedings had at the preliminary examination, transcribed his notes in typewriting, certified to the transcript, and filed it with the clerk of the court as by the statute provided, and that his transcript was correct. The transcript shows that the stenographer stenog-rapher was appointed and sworn by the magistrate to stenographically report all the testimony and proceedings, and that the testimony of the physician, as well as all other testimony, was given, and that all proceedings were had in the presence pres-ence of the defendant, and that he was given full opportunity to cross-examine that witness, as well as all other witnesses. wit-nesses. That the witness before the trial began and at the time the transcript of his testimony was offered was not within the state, and was in California. Is not controverted. The only claim made in such respect is that proper diligence was not used to subpoena the witness before he left the state. The court found due diligence was used. We see nothing to justify a different Ending, and think the objections were properly overruled. Further, the things hown bi the transcript or the testimony di ti rial witness were nit shown by other were th(nsnot disputed nor controverted oy sjy evidence. Tho physician, after lie had described waaSked" on lho deceased's body, Ar ;ou "hie to tate with whal Kind t a bullet that wouu.l wh nuule. ludii-troiu ludii-troiu th. uppcuruiHo uf the wound?" lie answered; "1 basneri on It at the time; It was a .as, ' that was my opinion." when the transcript of his testimony was read, an objection was made t. the quesuon and answer on the ground timi it was not .shown that the witness dob-ffssed dob-ffssed sufthlent knowh-dK.- to expresa an opinion on such a auhject. Here thti further fur-ther Kround Is urged "that expert testimony testi-mony must not bo offered on niaiu-ra 0f raot or common Knowledge." This ia uf BUI little moment, for the empty shells ana pullets found In the more with whioh the deceased and his son wore shot and Hilled confessedly, and without any r-on-jroveray whatever, were shells and bul-o bul-o 'L'" caliber, and were shot from a .rtb-caliber autoniattr gun. Another Complaint Made, Complaint la made uf the court's refusal re-fusal to permit answers to ecrtuiii questions ques-tions propounded by defendant's eounsol to a venireman on voir dire. Ureat luti-tude luti-tude was Riven counsel in the examination examina-tion ot the venireman. Alter ho had repeatedly answered, in response to queaaons put to him in different forms, that he presumed the defendant innocent. that tho state was required to prove his guilt beyond a. reasonable doubt, that the. Jury was the sole Judge of the guilt or innocence of the defendant, and that. If he was accepted as a juror, he would acquit him. if thero was any uncertainty or doubt as to the defendant's guilt, and mat he would not convict him If tho state had not proved him guilty beyond a reasonable doubt, and the fact that the defendant remained silent and refused tu testify would not make any difference, he was asked, "Do vou understand you are particularly Interested in the defendant defend-ant s side of this case on account of the lawful presumption of tho defendant's Innocence?" In-nocence?" and "You understand, do you not, that a juror la under no obligation to take the opinion of any witness?" Objections were sustained to those questions. Complaint is made of the rulings. rul-ings. We see no 'error in this. The defendant de-fendant was permitted to fullv examine the venireman as to all these matters; and. further, the venireman was not accepted ac-cepted as a Juror, but was peremptorily challenged by the defendant, who then hal ten peremptory challenges left. Charge to the Jury. The court charged the Jury: "If you believe any witness has willfully will-fully testified, falsely as to any material fa-cts In this case, you are at liberty to disregard the whole or any part of the testimony of such witness, except as he may have been corroborated by credible witnesses or credible evidence in the caae. ' ' Complaint Is made or this. It Is urged that "standing alone. It Is not the proper instruction," because the jury was not correctly guided as to "rules' of law in determining the credibility to be given to the testimony of the witness." A similar charge was before us in the case of Sta,te vs. Morris, 40 Utah. 431. 12 Pac. 3S0. What we there said answers, as WS think, all the objections here made. The defendant requested six instructions instruc-tions on circumstantial evidence. Complaint Com-plaint is made because they were not given as requested. L A comparison of the charge and the requests shows that the substance of them was given. The court gave two paragraphs on the subject, and therein stated all that was necessary to be said. Language of Court. In one of them the court used this language: lan-guage: "You are instructed that circumstances of suspicion, if they amount to no more than suspicion, axe not sufficient proof of guilt. In order to convict the defendant defen-dant upon circumstantial evidence, It Is necessary not only that all the circumstances circum-stances concur to show- tnat he committed commit-ted the crime charged, but that they are inconsistent with any other reasonable conclusions. It Is not sufficient that the circumstances proven coincide with, account ac-count for. or render probfTble merely that he is guilty, but they must exclude beyond be-yond a reasonable doubt every other conclusion con-clusion but that of the guilt of the defendant." de-fendant." Complaint ts made of trie first sentence. The criticism made of it is that the court by that language told the jury that "circumstances of suspicion" was evidence. evi-dence. We do not think the charge open to that. Besides, the claimed objectionable objection-able language was language taken from one of the defendant's requests, and hence, if erroneous, was error of the defendant's de-fendant's own creation. Thus on a review of the record we are satisfied that there is sufficient evidence to supojort the verdict; that the record Is free from error, and that the defendant had a fair and impartial trial. In which he was granted every right and privilege vouchsafed by the law. Hence does it follow that the judgment judg-ment of the court below; must be affirmed. af-firmed. Such Is the order. View of Justice Frick. Frlclc, J. I concur. It may. however, not be improper for me to add a few words regarding appellant's contention that this case should be controlled by the decision in State vs. Hill, 44 Utah, 79, 1X8 Pac. 1149, where we held that the evidence, evi-dence, as a matter of law, was insufficient insuf-ficient to sustain the verdict of the Jury. The imerences that the jury was authorized au-thorized to deduce from the uncontro-verted uncontro-verted facts In this case clearly distinguish distin-guish it from the Hill caae. Had there been conclusive evidence in the Hill case that Hill was shot through the body with a revolver, and it was further shown that the revolver in question ques-tion had been in the hanas of the deceased de-ceased In that case, and no explanation had been made regarding the wound in Hill's body other than that vouchsafed in this case, there would be at least some similarity between the cases. In such event, however, the decision In the Hill case would have been different. Moreover, the evidence of Identification In the Hill case was wholly different In its legal effect ef-fect from that in this case. While it is true that the witnesses in the Hill case stated that the person they saw before and about the time of the homicide resembled re-sembled Hill in size and build, yet In every Instance when these witnesses undertook un-dertook to describe the person they claimed they saw. they described a person per-son other than Hill Wholly Unidentified. The latter statements thus clearly neutralized neu-tralized the prior identifying statements of the witness, and thus left Hill wholly unidentified as the person who was supposed sup-posed to be Implicated in the homicide with the slayer who was killed in the saloon, and who it was shown killed the officer. In view of the uncontroverted facts in this case, the jury were Justified Justi-fied In entirely ignoring the claim made to the doctor by the appellant that he was shot elsewhere than in the store where the homicide occurred. The all -Important facts that appellant was shot through the body by someone, that hp was shot about the time and, as all the circumstances show, at the place where the homicide occurred, and that no one discovered or heard of any other shooting shoot-ing occurring on the night of the homicide homi-cide except at the Morrison store are all unquestioned. FVom the foregoing facts, when considered con-sidered In connection with the other idcntlfving evidence and circumstances, the 1urv were authorize! to conclude Indeed. It Is not easy to perceive how rational men could have arrived at any other conclusion that the appellant was. in fart shot In Morrison's store at the time of' the homicide. The fact that appellant ap-pellant was not required to take tho stand and testify in his own behalf, as pointed out by Mr. Chief Justice Straup. cannot affect the Inferences that naturally spring from the uncontroverted facts and circumstances. cir-cumstances. Right of the Jury. The Jury had a right to assume that, even though the appellant wanted to Rhleld someone, from disgrace, if nothing more and was unwilling to disclose who Sot Mm. vet the public gen-rally had no such Interest to shield anyone, and j for that reason, if the shooting mentioned by the appellant hail, In fact, occurred, someone would have discovered the fact, If not t he cause, and would have made it known before the trial. The shooting Of it human being, Whatever the cause. In a populous city like- Salt Lake, la no I BUCh a common and ordinary occurrence that the fad thai it occurred can long he Kept secret; and yet, if appellant's claim Is true, the shooting In lils case has entirely escaped discovery by anyone. The jury wore not bound to believe what to all others must appear to ho unreasonable and wholly Improbable. fAgaln, the jury had the further right to J believe that any reasonable human being would be willing to suffer moat any humiliation hu-miliation rather than to shield a murderer mur-derer who could commit a murder as foul as was the murder of ihe Uorrlsons. In order, therefore, to advise the Officers, as well as the public, that someone else committed (he dastardly crime, and to give the officers an opportunity to discover dis-cover and apprehend the real assassin or assassins, any reasonable person situated situ-ated as was tho appellant would at least disclose whore and fur what reason he was shot, even If he did not pursue the person who shot him. and In that wav place the responsibility of the Morrison homicide where it belonged. Comment on Silence. Ills refusal to do that by refusing to d Use lose where and bv whom his wound was Inflicted loft the Jury no choice save to accept the natural and probable inferences infer-ences to be deduced from all the uncontroverted uncon-troverted facts and circumstances, and no doubt, in their judgment, those -Inferences, without a single exception, pointed to the fact that the appellant was shot In Morrison's store at the time of the homicide, and hence Is gulltj of the charge preferred against him. In view, as pointod out by Mr. Chjef Justice Straup, that no errors of law occurred oc-curred at the trial, we have no alternative alterna-tive save to permit the verdict of the jury to stand. Justice McCady Concurs. McCarly, J. (concurring). 1 have with much pare examined the record in this case, and am convinced that the evidence is not only consistent with the theory that the defendant participated in the confmlssion Of the crime for which he stands convicted, but that it is inconsistent incon-sistent with any other theory. In my hrlef discussion of what I regard to be the salient points raised and presented by the defendant, I shall not attempt to set forth or to review the evidence in detail. The statement made by. the chief Justice of the facts and circumstances In evidence Js so full, fair and comprehensive, compre-hensive, and so clearlv renccts the record, rec-ord, that nothing more by way of marshaling mar-shaling of the tacts need he said. Counsel for defendant in support of their contention that the evidence Is insufficient in-sufficient to justify the verdict claim, among other things, that the defendant was not Identified as one of the men who enttrod the Morrison store on the night in rfuestion (January 10, 1914) and committed com-mitted the crime charged in the information. infor-mation. As I read and consider the evidence evi-dence tending to identify the defendant as one of the perpetrators of the crime, it is about as conclusive on that point as though the witnesses had positively identified iden-tified the defendant as tbe taller of the two men who were at and In the immediate imme-diate vicinity of the crime Just before and immediately after it was committed. com-mitted. Description Tallies. The description that Mrs. Seeley gave of the taller of the two men whom she and her husband met at the intersection of Eighth South street and Jefferson avenue ave-nue tallies with the description of the defendant in practically every particular. She testified that the man she met "was a sharp-faced man with a real sharp nose, and his nostrils were rather large." and that he had a "defection" or scar on the side of his face or neck. The defendant defen-dant was described as having a similar scar on the side of the face or neck, "a real sharp nose." and large nostrils. The witness further testified: "Q. How does the neight of the defendant, de-fendant, Mr Hiltstrom, compare with the height of the man that turned and looked at you there at that time? A. Very much the same. Q. -As to build? A. Yes; they were slendcr-bullt. both of them. Q. How does Mr. Hili-strom. Hili-strom. as he sits here, compare In regard to thinness WHh the man that you saw that day? A. His thinness is just about the same. but his hair is entirely different Q. In what respect is his hair different? A. His hair has been cut. Q. Did you state whether or not the appearance or the defendant's hair is anything like the hair vou saw on this man that night? A. He harl light hair; yes; the one I saw. Q. Light hair? A. Tes; medium complex ioncd, like this man." Additional Testimony. Another witness, Mrs. Vera Hansen, testified : That she lived on West Temple street directly opposite Morrison's store; that she was at home on the evening of January Janu-ary 10. 1914. between 9 and 10 o'clock, and "was sitting in the front room, the nearest the street" : that she "heard a loud noise that sounded like pistol shots"; that she immediately "opened the front door and loeked out ro sec what It was"; that she saw a man "just coming out, just stepping out. of the door" of the store, and saw "little Merlin" Morrison "back in the store"; that she then ran out on the sidewalk ; that the man she saw came out with his hands "to his chest and in a stooping position," and that she heard him say, "Oh, Bob!" that It sounded like a "voice full of pain; that It was unusually clear for a man's voice, not hoarse at all"; that in less than a week thereafter she visited the county jail and heard the defendant talk, and that his voice "sounded exactly like the voice of the man that came from the store that night calling 'Oh, Bob!'"; that she saw the defendant standing erect in the county Jail after he was arrested. "Q. How did his height and how does his height now, Mrs. Hansen, Han-sen, compare with the man that you saw come out of Morrison's store? A. Compares Com-pares exactly," Tells of What She Saw. Another witness, Nellie Mahan. testified tliat between 9:30 and 10 o'clock p. m. on the night in question she was at her home across the street south from the Morrison store; that she heard shots, and immediately thereafter looked out of the window and saw a man stooping with ills i hands on his chest and running from the store diagonally across the street in a southwesterly direction towards the alley al-ley mentioned by the chief justice in his statement of the facts; that she heard the man say two or three words that she did not understand as he was crossing the street, and then heard him say, "I am shot-"; that she saw the defendant at the county jail stand erect, and "all 1 can say is, that man was very tall and verv thin, and so is Mr. Hillstrom." Counsel for defendant In their printed brief, refer to and characterize the evidence evi-dence of Mrs. Seeley as "very shadowy pretense of testimony. thought-leas, thought-leas, loose, flippant talk." and urge that It should have been "stricken from the record." Commenting on Mrs. Hansen's evidence, they say: "Consider for a moment the utter! worthlessness of such testimony to 'prove a fact. The actual experience Of mankind confutes this testimony." Witnesses Not Biased. This Ipse dixit of counsel are the only expressions (aside from criticisms, which are without merit, directed to the manner In which the examination of these witnesses wit-nesses was conducted by the district attorney! at-torney! we have from them respecting this evidence. No claim is made that these witnesses, or any of them, were unfriendly to the defendant, or that they showed any bias or prejudice in the case. In fact, a perusal of I nis evidence, as contained in the bill of exceptions. T think, will show, so far as it is possible for a record to reflect the demeanor and state of mind of witnesses, that they were not biased or prejudiced agalnsl the defendant, defend-ant, and thai neither of them was "thoughtless." or "flippant" in giving testimony. The weight, however, that should be given the testimony, regardless of whether the witnesses were sedate and serious or thoughtless and flippant while testifying, was for the jury. Mr. Wharton, in discussing this char-actev char-actev of testimony in his work on Criminal I Evidence ilOth Ed.. at section 803 says: "We have a right to hold, in fact, that it is an absolute law that each individual should have certain features assigned to him by which he is distinguishable from all others, and that these features, while subject to gradual modification by age. should yet retain their characteristics so as to be distinguishable for months, even under the most artful disguises. The whole figure may be r hanged by dress; tho hair may be cut off or dyed; yet the eyes, tthe nose), the mouth, tthe voice) remain, re-main, each of which possesses traits that cannot be defaced by any means short of destruction. But the face is not the only test. (Voices are equally distinguishable) dis-tinguishable) and their distinguishabillty has been made the basis of convictions in criminal courts." Words in parentheses parenthe-ses mine. Question of Identity. In 3 Wharton & StiUe's Med. Jur., Sec.-636. Sec.-636. it is said : "Besides the general appearance, dress, manner, and voice of a person, peculiar marks upon the body are very important, perhaps much the most reliable, means of Identification. Scars,' burns, cicatrices, fractures, etc.. upon some portion of the body of the prisoner, distinctly remembered remem-bered by those who have seen them. wU generally be received as evidence of identity. Very often where the scars resemble re-semble each other they may have been caused by different agencies. In such cases the evidence of physicians can be brought to testify as to the cause of the wound. .Still such evidence is not always reliable, for a mark of such a nature may exist from exactly the same cause in two different persons. It goes, however, a great way in establishing an identity, and is generally conclusive, unless rebutted re-butted by stronger contradictory evidence." evi-dence." See, also, 3 Cham'oerlayne, Mod. Ev., Sec. 1367; Commonwealth vs. Scott, 123 Mass. 222, 25 Am. Rep. 81; People vs. Bot-kin. Bot-kin. f Cal. App. 2-14. 98 Pac. 861. The undisputed evidence shows that the scar on the face and neck of the taller of the two men whom Mrs. Seeley and her husband met across the street a short distance west of the Morrison store just before the homicide was committed, . corresponded cor-responded in size and appearance with that on defendant's face and neck. In this case there is, in addition to the scar and other natural features, characteristics characteris-tics and marks more or less peculiar to Individuals mentioned by Mr. Wharton, the dangerous gunshot wound inflicted on the taller of the two assassins, which the evidence tends to show corresponded with in this case the movements and conduct of the defendant on the night of and soon after the homicide was committed, coupled with the other facts and circumstances circum-stances in evidence to which I have referred, re-ferred, and which are set forth In detail de-tail by the chief justice, point with unerring un-erring certainty, as T read the record, to the defendant as one of the perpetrators of the crime charged in the Information. T therefore fully concur in the reasoning reason-ing of and in the conclusions reached by my associates. the gunshot wound received by the defendant de-fendant the same night. Besides, there are other facts and circumstances in evidence evi-dence of an incriminating character. Actions Are Criticised. The statement made voluntarily by the defendant to Dr. McHugh that he was shot In a quarrel over a woman and wanted the matter "kept private," his refusal to inform the officers of the place and the circumstances under which the alleged "'quarrel over a woman" took place, notwithstanding the officer assured him that he would be given hia liberty if his state ;ent In that regard should ; be found to ue true (the evidence on this i point, as stated by the chief Justice, was i brought out by defendant on his cross-l cross-l examination of the officer), his throw- Ing away his gun as he was being taken j by Dr. Bird to the Eselius home, his re-i re-i quest that the doctor turn down the lights of the automobile just before they ! arrived at the "Eselius home, his two "shrill and penetrating' whistles when he and the doctor arrived at and just before they entered the Eselius home, were all so unusual and extraordinary and fo at variance with the conduct and movements of men who are peaceably inclined in-clined and law-abiding that the jury were justified in finding that the explanation the defendant gave of his wound was false, a mere subterfuge, and that the Eselius home was at that time a rendes-voup rendes-voup for criminals, and recognised as such by the defendant. i Cases Are Not Similar. I There is hut little, if any, similarity ! of ffcets In this case and In the case of State versus Hill, 44 Utah. 79, 188 Pac 119. cited by defendant in support of his contention that the evidence Is. as mat-, mat-, ter of law. Insufficient to justify the ver-I ver-I diet. Tn the Hill case the evidence not j only failed to idetitif. t ho defendant as ! one of the robbers who committed the ; crime there charged, but tended to show j affirmatively that he was not. 'rheicas |