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Show BOISE. Ida., May T SO. Charles II, Mover, William D. Haywood" and George A- Pettibone were taken to Caldwell yesterday yes-terday to appear at the opening of the District cmirt of Canyon covnty. when. In the usual order, the time for their trials should be fixed. Nothing was done, " however, beyond submitting to Judge Smith legal points, claimed by - the prosecution to be a bar to further proceedings at this time. Attorney At-torney Richardson, for the defense, stated stat-ed when court opened he had filed two motions, one asking for a change of venue accompanied by affidavits, and the other asking that some other judge be called in. These motions were not made a matter of official record and will not be until the other question Is disposed of. The matter that stayed proceedings was a question of the present right of the court to try the case In view of the provisions pro-visions cf section 766,' Revised Statutes of the United States, as construed In a decision de-cision of the United States Supreme court. In the case cf Cramer 1 vs. the United States. - Prohibition Is Claimed. . " ' Under that statute it is claimed by the prosecution the State court is prohibited from taking any action in the case, pending pend-ing the determination of the appeal from the United StateajCircuit court for Idaho In the habeas corpus proceedings started by the defense soon after the accused were brought to Idaho. Proceedings ' were first brought In the State Supreme court. That case was decided de-cided against the defense and It was taken to the Supreme court on writ of error. The case in the United States court was likewise decided against them, and a direct di-rect appeal to the United States Supreme court was taken, where both are pending, pend-ing, being set for hearing on the first Tuesday in October. The statute states that any proceeding of a State court In such case pending determination of an appeal .of that kind from the District court shall be null and void. The Supreme court construes this as raising a bar against further proceedings. proceed-ings. Attorney Hawley, for the prosecution, prosecu-tion, called the attention of Judge Smith to this statute, and the decision thereunder, there-under, and he said it rested with' the defense de-fense to take affirmative action if they wished to have a trial at this time. The condition was fixed by the Federal statute and the State here was powerless. Dismissal Suggested. -.'" The affirmative action suggested for the defense was that they should dismiss the appeal from the Circuit court and rely on the writ of error from the State Supreme court, as both cases cover exactly the same points. Affidavits were submitted from the clerk of the State Supreme court and the Federal Circuit court, showing the habeas corpus cases had been taken to the Supreme court of the United States; also a telegram from the clerk of the latter court stating these cases were pending there. Mr. Hawley wished to have the matter submitted without argument. Judge Smith intimated he thought' the matter should come up in the form of a motion. He did not desire an argument, as there was nothing before him as a basis of an aigument. Mr. Hawley -stated they wished merely to call the attention of the court to the existing condition. He the ugh t no motion was required. Defense Anxious for Trial. rinrnMi fMrraw. who bad arrived anil bren entered as an attorney In the case, said they . did not desire an argument, they wished it understood they were on hand and waiting trial and anxious to have a speedy trial. They could not waive anything nor could they dismiss the appeal ap-peal from the ticket court as they wished to be able to show they had exhausted every possible remedy. W. E. Borah, for the prosecution, said the prosecution was not asking the de-ferse de-ferse to waive anything. A condition was presented over which the State had no coitrol. Further proceedings would be null and void. When the defense took the sppeal from the Circuit court of having carried the same point up on writ of error from the State Supreme court they knew, he said, the appeal would act as a bar to further proceedings by the State court until the appeal was disposed of. Oplniofe of Judge. Judge Smith reiterated his opinion that the matter had not been brought up properly prop-erly and spoke very emphatically, saying: say-ing: "I am frank to say that this court cannot take judicial notice of what is proceeding in the 8upreme court of the United States, and you came in here and unload on this court a lot of affidavits without any motion and I don't see how this court is going to consider the matter mat-ter at all. I will take the matter under ' advisement, though, and will pass upon It Thursday at 10 o'clock. "There is nothing before this court: there is absolutely nothing .before this court. - I tio not take judicial notice of what Is now pending in the 8uprem court of the United States, as I say, and ' all I know is that these men are here ' n pending trial and under the constitution of the State of Idaho they are entitled to . an Immediate trial. I will consider the -matter, but I will say that I don't see '" how I can act upon It." . . . |