| Show bURT DECIDES DEGIOS fIRST t REE I r- r Ogden Men Held for forr r Slaying Return to Home lifter After ter Fathers Are Accepted Accepted Ac- Ac as f Sureties STATE ATTORNEYS ARE DISPLEASED I I. I Nothing thing Is Satisfactory l Moreton T Tells Judge 1 IWho Who Holds Evidence I Fails for Higher Charge rage dge No Noel 1 S. S Pratt this morning held d Marriner arriner A. A Browning and John Browning charged with murIn murIn murder mur mur- der In the first degree forthe slayIng slayIng slay- slay Ing log of B. B F. F Ballantyne on April 9 th district court for trial on the charge o of murder In the second de de- de gree e. e Upon motion of oL counsel for fort forthe t the defense the court overruled ob objections ob- ob of Coun y Attorney Arthur Moreton t fixed x d the bail ball of each defendant at Within thirty the ball bail bond had been beens s sighed ed by M. M S. S Browning and John Browning Brownin of Ogden the fathers athers othe the respective defendants dar ts the I Itt court coult tt accepted the two sureties I signed ned an order of release on the ff and an before 11 it o'clock the themen thet t men were en route to Ogden Ogdena a 1 th their families I 1 o 0 far as the state is concerned concerned no nothing hing is Js satisfactory Is the way in which Mr Moreton voiced ails t is s so o 0 IW to the amount of b bond n fI ed by the court wh when n Judge Pratt asked aed ed him if it that amo amount t Js satisfactory satisfactory satis saUs- factory to the state In intimations that the t torney's orn ys y's office might prepare and if We Ip a a. a new complaint against the Brownings again charging them h m rde in the first degree w wire v e 0 not confirmed by Mr Moreton 1 KI I dont don't know I haven't had a finance once Ance to think think- it over o he an answered an- an wred in reply to a direct question a as tj to tD whether a new complaint be filed ATTORNEYS CONFIDENT Absolute Absolute confidence that their c would be entirely cleared In Inthe ine the e trial court was expressed by the attorneys attorney's s In ch charge rge of the defense nithe Inthe case which has occupied the attention of Judge Pratt during durin the entire week The case was defended b by i Attorney Thomas of Marioneaux Beck tf of Salt Lake I and d James H. H Devine and James A. A Howell Bowell of Ogden County Attorney I Arthur Athur E. E Moreton and District At- At I At orney Edgar A. A Rogers were In charge of the prosecution I The state has failed to make a I case cas e. e said Judge Pratt in voicing his oral decision this morning that thatis is In conformity with the allegations allega- allega of the complaint charging murder in the first degree The decision of the court yas was Vas given following his study of the tr transcript and the authorities since the he resting of both sides aides shortly before before be- be fore ore noon yesterday In substance the courts court's decision follows Li I 1 have examined the evidence Applicable applicable In this case There seems to be a conflict between the state and nd the defense as to the duty and power of the committing magistrate i ut t this difference Is not so 50 wide widen 5 n as It may appear appear- Both sides agree that the record In the case should b be th the guide for the court In giving his decision and that he he should cone con- con fue e himself to the transcript DUTY OF COURT Fit It Jt Is the duty of the court to first ascertain that a a. crime has been c committed according to the evidence evi- evi Hence dence that has been presented Sec- Sec y he should decide whether that evidence e is sufficient as will Justify Ithe h holding of the defendants on the charges made tIn In this case both defendants are arec c charged arged with murder in the first de- de nee At this point the court read Ithe the formal charge as made in the Complaint They are charged with willfully feloniously unlawfully and murdering Each EachL L words have a clearly defined defined de- de fined legal meaning The burden of Proof Poof In each Instance Is on the state Iti In this case the facts are und un- un d that Ball Ballantyne was as killed b by bya a shot fired by Marriner Brown Brown- Bk Continued on page 3 COU RT DECIDES Continued from page 1 1 Ing Homicide may result In a charge of murder In the first degree degree de- de gree gree murder In the second degree voluntary or involuntary manslaughter manslaughter man man man- slaughter or it may be excusable ble homicide Self defense If It is Js upheld upheld upheld up up- held would be Justifiable homicide In this case 1 I do not find that the evidence as it has been presented shows that the homicide has been justified It may be that the de defense defense defense de- de can show such Justification but from irom the evidence introduced In this preliminary hearing the court cannot reach such a decision To establish murder in the first firs degree It is necessary to show that tha there was premeditation however brief but still a sufficient time for forthe forthe forthe the accused to have weighed the question whether to 1 kill or not to kill Any other murder excepting that committed In the act of robber robbery robbery rob rob- ber bery or by poison polson or lying in wait waitis is defined by common law as murder murder murder mur mur- der in the second degree NO CONSPIRACY SHOWN I am not unmindful of the citations citations citations cita cita- that were made by the tho state but I can find no evidence that tha I there was a conspiracy between the defendants defendants' to commit murder Marriner Marriner Marriner Mar- Mar riner Browning was not even a trespasser The command of Ballantyne Ballantyne Ballantyne Bal- Bal not to enter the house was made to John Browning Marriner had been there before and had hac hadI been welcomed by Ballantyne anc and I according to the evidence he had hadnot hadnot not been forbidden to enter There Is no doubt that Marriner intentionally and wilfully fired the shot and the defense has not introduced Introduced Intro intro- evidence sufficient to show self defense I can find nothing to show premeditation I therefore hold that the state has not made a case Under the evidence however I Ido Ido do not find that the homicide was Justifiable or ex excusable usable The question Is therefore then reduced to whether the homicide was voluntary manslaughter or second degree murder To be voluntary voluntary vol vol- manslaughter there must be evidence to show serious provocation provocation tion or that the act was committed committee in the heat of passion No evidence evidence evidence evi evi- evi- evi dence to show the state of mind of ot Marriner Browning was Introduced There was sufficient evidence as presented here which may mayor or may not be the case cale when the trial comes before the district court to show that the defendant Marriner Browning is guilty of murder Inthe in inthe inthe the second degree Therefore I hold him for trial In the district court on that charge As to the defendant John Johi Browning the evidence as disclosed disclosed disclosed dis dis- closed by the record In the preliminary preliminary preliminary prelim prelim- inary hearing shows that ho aided and abetted Martinez Marriner Browning Drowning Therefore both defendants are helito held heli to the district court on the tho charge of murder In the second degree |
