Show THE NOTION MOTION OVERRULED W the verdict in the grow case vy will not be set aside 1 1 JUDGE TRIES TO BE AK deher definition J 1 1 1 1 this morning the ta motion for a new trial tria I 1 in the case af 9 the united states VS va henry hel ury convicted of unlawful uala I 1 1 1 cohabitation habitat jon was taken up ii in the T third 1 4 ird d district dietric court taker A mr r J sheeks sheeka appearing for the defendant I 1 the defense asked thattie that tile verdict of the jury be set aside and a new trial ordered on the grounds that the evidence was insufficient to justify the verdict and that the court had bad erred in per permitting ag witnesses to be asked certain questions and in the charge to the jury mr shocks sheeks made a short but fore forcible ble argument in support of the motion I 1 i mr dickson opposed the application commenting principally on the ida fact that the plural wife bad not been found by the officers for nearly a year and a naif half after the indictment was found lie he also alleged that the witnesses did not testify to all that they knew in the case mr sheeks replied that the prosecution had no right to hold the dejen defendant dant responsible for the absence of a witness for the prosecution when it was not shown that the defendant had anything to do wi with thit it it was a poor reason to urge conviction because the witnesses could not or on did nt net testify to facts as the district at orney wanted them to when no evidence was given against a mantheim man there therm was no ustice justice in convicting him simply for the reason that the district attorney said the witnesses were friendly to defense judge zane then gave his decision in sab as follows the ant in this fase cas casenas iwas ewas tried before a jury and convicted he now araos for fora a new trial the rule of law governing the granting of new trials varies somewhat some say eay that if there is 46 any evidence to support th the e the court will not set it aside others that unless it is evident at first blush that error has been be en committed mit ted not be done still that unless it is clearly wrong it must stand the true rule fule seems to bo be the court will nt not set the verdict aside unless it is clearly of 01 tiler the opinion that thle the jury waff in error under the statutes toe the lur jury dyle aye SON sole jud judges e s of the evidence vl defte and unless the ver verdict 5 let is clearly wrong or Ind induced laced 1 by improper motives or by mIsts mistake ke it not be bd tel set aside to prove ail offense offe nae of this kind ki ad m may ay pe be circumstantial when the is such that it jj a party arty knows it is wrong he endeavors zo 0 conceal it it is not an offense practiced on the housetops I 1 hut but is usually a dark association tutors judged by the circumstances and arrive at a odo conclusion nel aaion as to I 1 tb the e facts the circumstances of tvis avis case are that the defendant had bad a lawful wife the controversy is ii with regard to his polygamous wife whom he be married about sixteen sirteen years ago he lived with her until tine the law of 1882 12 was passed when they became aware that it was unlawful Up lawful to live together as man and wife she states states that they agreed to separate and did so they pid not separate because they wanted to they would like to still cohabit and the probabilities are they did not think it wrong to do so except as i it t was a violation of law the defendant gave her a house bouse where she lived except when away from home he went to her house on a number of occasions one explanation of these visits to is that the house seeded needed repairs their relationship was that of owner and occupant and builder or repairer he be was repairing the house the evidence shows that he be was not the th e house 0 so o long lone as his visits continued from december 1582 to october 1885 that hardly explains ills his frequent visits the other explanation is visiting and bringing letters to his grand granddaughter daughter the associations there were of letter carrier and granddaughter grand daughter for which he came and to to inquire how she got along and that he be did not corae come to see his bis poly polygamous ganious this ahlo vs is the explanation of f the visits grand laughter the polygamist isi wife says he did not come to see her when she was arrested she tried to mislead the officer by trying tp make it appear that she was waa not defendants wife the defendant had bid been away from frow home several nights this is explained by the festl testimony mon that hat defendant defend abt sometimes slept tat at the remie female block these facts singly amount to little but the number of 0 i circumstances point te the dispute IS arid weigh a great deal many of the facts are borth but little separate but taken together inthe in abe light fight of i the relation of the defendant and his polygamous wife and their disposition to live to together kether they are worth something and with the manner of the witness afforded evidence that this nian man as associated socia ted with her as his big polygamous wife when he wo been seen at ai her house BO 60 often there was sonie some relationship it would hardly do to say it was only thai of friendship A candid toan man understanding haman human character who sees a man visiting under these circumstances would not thinks so it is not human nature ahi wy polar wife is an attractive one who would attract an bid gentle beutle man with such propensities as some old gentlemen haap nave A candid man would and the jury did come to the conclusion honestly teat that he was guilty I 1 am abt sure they were wrongs wrong my conviction is that the old gentleman was thew as socia ting with his polygamous wife the fact that he wasat was at the block was offered to explain his absence from home the j ury must have found that he was there or with his plural wife the fact that he had no other wife pointed to this one I 1 am of opinion that the charge carge to the jury was not incorrect the supreme court said unlawful cohabitation was not an isolated act but cont coni con i t tinious until an indictment was found 4 theoal Theo the only nl way it could be separ separated was by finding an indictment tho ho cohabitation cannot be actually continuous they cannot be t the time a man n may be away nea nearly aly all the time away for years yet ya the cohabitation is continuous it if a party associates with a woman oman as his wife under circumstances that indicate she is his wife though it may be but an hour fourthey they arg are together they are living they are liv inn ing together though the evidence in this dase case is meagre I 1 am not disposed to set it aside 1 1 I 1 I 1 I 1 wr Sea sentence tence will be passed voon the defendant on saturday march 19 wj a p pm m |