Show STATE STATE FAILS TO PROVE OGDEN MEN GUiLTY MB LAWYER A ARGUES Marriner Browning Fired In Self Defense and Jack ack Browning Had Nothing to Do With Shooting Marioneaux Tells Court State Resists Motion for forA Directed Verdict I Special DL Dispatch I S SILT S LT LIKE L KE KE Nov 20 having argued since Ince 1130 clock Monda Monday morning mornine I In favor t of ot ht his motion tor for a 0 directed verdict ot not guilty In Jn ta favor faor or ol of A Dlo and Jack Bro BronIng of at Ogden Thomas J MarIoncU counsel foi fot the defense tom com com d his ar arguments at nt 11 SO 30 today The state late through District At- At At Attorney torney D J I A roge rogers q th then n bega Its arguments the motion to tr free e the Ogden men accused ot of the fatal shooting ot or B I I aI last April Mr Marioneaux today attacked I Ith th of oC the thc alleged ding declarations made by Bat Bal Dallant I lant n The The lawyer laver declared It was as In- In in inconceivable conceivable able that Ballant no could hase ha believed l be ld himself dying when he made the statements statement accusing the thi I 0 nines It If he behe believed eel he as v d dIng ing the lawyer lawer he Jie would hae ha called tor for his his belo beloved cd wife Ife an ani l children and his parents The state has pro proven en that Mr ne B declared he 10 lo loved ed ci hs ICe Ife betler better than an ani thing thine et else In Inthe Inthe the tho world orld orld Sir Mr Ballantino Mas ns as t a normal human Therefore It if he had believed himself dying lIe would ha have base e desired to see Bee these cd loed ones before the end and aj e has ha hae e a expressed the desire to see them f I IThe The attorney argued that If It Mr did not e express such sucha a wish Ish he therefore did not be- be behe be believe he lieve hee e he 89 was vs dying and ond it If he did iii not he lIe was d dying Ing th Ilie he made about the haiti half no place as eI- eI evi dence against the accused District Attorney Rogers took exception to the inference which lie he said counsel for the defense defence had made that the tho judge had not given given en ln due duo consideration to all the ta facts ts surrounding the dying statements Mr Rogers said the court courts s ruling rul ruling ing mg that the statements Ie ad- ad nd ble was trade n-ade after proper consideration of at the evidence The district attorney said there was no doubt that the statements actually iere ere d dying mg declarations and therefore their admission was proper I Mr was Wl expected to argio through the tho afternoon ag the motion for a direCted of ot not guilt guilty In his hia argument for a directed el Of or not guilty Atto Th mas Marioneaux dh divided his allons Into t two tuo a general dases bringing out fh qt that the ing of ot Dallant Ballantine ne nelIS as lIS in n self self- defenso i I leeno and thui th dore justifiable JustiCiable homicide homicide and and that the al- al al alleged d duns 1111 nl ale nio e In- In In Inadmissible admissible as evidence e before the jury jur For Jor more thin thre hours on Monda Monday beginning tI at- at atter af after ter tr 11 o'clock mid and continuing th the he afternoon session selon of court th chief chot of or counsel for tor forthe forthe the Dlo on his arguments arsu- arsu arguments ments with nith Ith smashing directness At times he ie cited authorities n n I of ot h his contention that D was not In a ding con con- con and did not bellee belle belle e himself to be near death when then he be IC rc e I cued the Bro Brownings as his slay slay- slayers ers era Again Again he dramatically Quoted testimony glen gl gli gl en b bv b the state sown s own witnesses 1 as proof that Ballant ne did not belle believe himself to be dy- dy dying dy dying ing Despite the thc c courts court's urt's recent de- de decision dc to the contrary Marioneaux ed able ablo hit the jUlY should b called upon to believe that the man as when hen In hs own oin words c the belief behe that he live IRe T E I Man Mant times during his ment the defense attorney referred to toI the I the e evidence that was as introduced before the committing cem magIstrate a the preliminary how ho the I alleged d thing dInS InS ere cre ruled out at that time and lew taken bv bs the court as to their In- In In Altogether the argument a was nas as fervent andin and in inI I mans mall respects alon alone the same saml lines that might be followed d In making a n plea before the jur jury Due flue to the tet that the argument argument ment on the motion for fora fo for a directed verdIct or at least on a t renewed motIOn for Cor st out the ding d Ing accusations c scheduled for morning the jurors did not report In the courtroom throughout the day and will III re- re reI re remain I main absent until a verdict on the motion I Is forthcoming from the court The state Ith District Attorney E D A Roger presenting the arguments Is pre pre- prepared pre prepared pared to resist the motion of the defense ft After ner asserting that the death ot of was as Justified as proven prOHn h bi the tile states state's own c ei- ei evi 1 dence clene evidence rn Att do- do de declared dared that on the tha testimony so far i adducted the jury would oud not bo be boI I In considering the de- de deceased de deceased ceased In or r In a dIng condition at the time the alleged were made From that point he hp considered first the tho ele- ele ele element mont ment of self Belt d defense which ho said the tho state had clear clearly pros pro proven en They end con that Marriner A Bro tired fifed the fatal tatal shot and that John Br Browning Is Jointly guilty said Attorney Marioneaux Remember that we are consider consider- dying ing lag considering the case as it there al ale aie e no dy- dy dy ing declarations There Is not a II I- I I II particle ot or evidence that John Bro BrOi ning counselled or advised I Marriner Bro Browning to sla slay the de- de deceased de deceased ceased nor even oen to do him bodily harm ha nn HELD RI BLAMELESS 4 For Por John to be 11 equally guilt W with ith th Marriner In Inthis inthis Inthis this alleged crime the la law lass requires that It must be Lie ho shown n he aided and abetted defendant co-defendant In the shooting Thor There Is certainly IL n lck of evidence to that effect Ther There Is absolutely nothing to show that he adv sedor Dro to do the shooting The defense counsel added that It Is not sufficient that John I Bro Bro was as merely present hen hen the shooting occurred or that he witnessed the homicide and cited several eral cases caes In proof of at hIs contention I I concede that a man mIght aid in a n sla staling Ing without abetting the actual slaver continued At- At Attorney Attorney At Attorney torney Marioneaux but but the 1 11 1 derce sho s that Ballant ne rushed Into the library with n a threat on his lips As soon a John Bro w tint Irto Into the room he saw with t a a gun In his hand and l Ballantyne didn't In Jn his Ills murderous and nd at thit th Marriner Bro sav aw the dangel and I ned ed edI St t t that time the tho gun In Bal Bal- Ballan Bal lan nes ne's hand vas sas as cohering co an arc I would Jinse e brought It Into a position tal or tring fring Take a look I at that picture and see It If you OU can canI I see that John Bro Browning aided an and 1 01 Mi 1 Browning Drowning to do dothe dothe dothe the shooting You might say that he ho went In- In Into Into In Into I to the house against the wishes of ne but that hat doesn't mean I that he aide aided and abetted abetted In the tho sla Ing lIe He didn't know w Marriner Bro was as gonA going to shoot un- un until until un until I til that shot hot was tired fired to sa sae saI e I I John s life liCe V U hat Is la there In that thatto I to Indicate ln that tha John Browning committed committed any crime or that he aided and abetted another In the commission of ot a crime I IV IN SELF CLr DEFESI B E All AU of the evidence dent presented by bythe bythe bythe the state so far the defense at- at at attorneys tornes red deel had had two tao of- of ef effects that Marriner Browning hail had I tired fired the shot in defense of or John JohnI I Bro Broning and that the tho latter did I to encourage the lie He added that after all the tho law I recognized no clime as such unless there thero I Is 0 evidence of ot a criminal mind On this presumption the argument went ent on there must be e to show that an accomplice accomplice In a crime must stand beside the person who wIlo commits the crime and H aid that t person lou Tou ou might actually hate bate the tho thoman theman theman tI I man who ho Is about to be lie slain as- as asserted asserted as asserted the attorney ou might be at the tho ot of his death but unless ou strengthen tho the arm ot of him who ho Slavs lou ou are arc not guat guIlty of a a crime You Tou may be guilty before a higher tribunal but iou ou are not punished node unde the law lass for tor sour our thoughts HEIGHT 01 OF or JU I l nIng Suppose th n that John Bro Brown i Brown Browning n-I n ing ng Intended to tire fire IC It had not fired first That doesn't Indicate e even esen en then he strengthened the tho arm of the man who ho did tire fire i the shot Again Agan I say It would be bethe bethe bethe I the height of ot Injustice to tinge this act with a moth motis motive e for Cor or criminal criminal- criminal I criminality ity ItI It Attorney Marioneaux l argued to I om ome extent on the question of Marriner A Browning Brownings s alleged guilt considering It from the angle angleo ot of sit defense He said It sag as argued b by the tato at the pre pre- pre that the defend defend- defendants defendants ants had deprived ed themselves ot of the right ot of defense self because Bailout they had dared to enter the hal Bal Bai lout nc home It It was sas argued that these de- de de defendants self defense had lost their right of ot self self- defense because they entered the castle of oC him who sho ho was as master continued the Bra Brownings Browning's attorney In In other otlie words It was vas said eald that they forfeited all consideration In- In In deed Indeed their life liCe If it the master sass sa fit It to take it They argued that John Browning Bro entered at Us peril and that Benjamin 1 r nag as In righteous Jur pursuit of the lass la lassof ot of a ch civilized land It if he chose to seize a gun and shoot him down clown Th t Is la a contention which we claim Is preposterous l H G G I I am om inclined to believe that humanity Is In deca decay when hen a man stands up and I says DYS that any mm ha has a right to slay clay under such auch cir cir- circumstances circUmstances cir circumstances and to accuse o John Dro JohnDro of at murder tor for Insisting on the time right to protect his sister Bister Attorney Marioneaux It l be the essence of ot to say that the state mate had pros pro ln en feared Jonn Browning hid hard gone to the house that day lay to do todo him bliss bodily Injury He lie pictured hat might have hase happened had Ballantyne been ben quicker on the than Marriner Bro declaring th that t such a result result would auld Inot not only have basic been beta unjustified but have base been blen felonious In arguing against the tho slon slon sion of at the statements to th jury as dying declarations Ito Attorney id d that the state had proven conclusively such testimony should never ne go before the jury as such lIe He also stated Ithe proof that there thero was ae no requisite ot of such when the court rendered that the tho an Friday an opinion on were ero admissible as a dying declarations MORK MORl FACTS r GIVEN I Since that time tInse time the attorney added there has hns been additional proof that there was as ss K-ss grounds for allo allowing ng the accusations to go goIn goin goIn In In this connection he men men- mentioned mentioned mentioned the testimony of at o Patrolman A H Ii Rogers who ho had told laid 1 no he was as shot t In the tho shoulder and also th thi additional testimonY of Dr J J Galligan to the that the patient was brighter nn and andin andIn l lIn In better condition alter after the opera opera- operation operation operation tion i Attorney Marioneaux In this con con- connection con connection made no reference to the attempt during tIle the morning besson to make County Attorney Attorney Attorney-ArthurE Arthur ArthurE E Moreton admit on the witness stand ho had held hold Ballantyne's statements Inadmissible because the man belle believed ed he was vias as going r to live hive Taking up the them them- themselves themselves themselves selves the attorney attorn Y pictured the court passing on the tho question had the deceased actually said he d dIng Ing and had the state Introduced an eminent physician who testify that he said No No the pa- pa patient patient pa patient tient is not ding and lie will live IRe Would the tIme court in that case Sn sa No he said he dying but the physician said Id he was not serl- serl seri seriously Injured and they were justly sanguine of ot his recovery But here e have a 0 a case very similar to that the man himself said he lie bello ed edhe he was as not dying an and l the declared that ha lie was as seriously In- In Injured injured In Injured but had a chance chanco for tor reco cocos- recovery cry ery QUOTED But In the cases which the court cited in connection with his decision the deceased actual be- be be believed lIe Cd he ho would die or slid nothing hile In this case IJas has as said positive positively e- e ly Iy that he be thought he lie would re- re recover recover re recover cover I 1 ha have base e not been able to find finda findt t a case where a man said he ex- ex expected expected ex expected to 11 live lisa e and where here his state state- statements statements ments were TO admitted as ae dying declarations All authorities I Inn base e been able to find declare that If Ithe he be has the faintest hope of ot reco cry ery his statements are not admissible What wo e have base tailed to male make most emphatic la is the thc declarant s a mind con condition In reality It be just as fair tall for us to So ea sai to the Jury We want vou ou to belle believe 0 all these accusatory statements but hen he 84 aas s he thought he recover we e dont want vou ou au to 10 be- be be believe lIe lieve that How can any man be- be belie be believe lie lieve liese e that Ballant ne t going to get well ell when he said no so him bins himself self Near lar the close of his afternoons afternoon's argument Attorney called the court courts s attention to the tho fact that the tho burden of ot pro prosing believed he was going to die was upon the state not the defendants whereas he had used nothing but the states state's evidence to prove that the wounded man had belle ed he vas sins as going going- to II useIn use live l In a brief summary the time defense attorney again rele rev re lew le ej all nil of ot the states state's testimony tending to provo this point referring to the assertion made mado In the tho presence ot of Detective 0 J A that III take tako care of oC them when I 1 get out of at here When he had hall completed the re ree review e Attorney 1 said he hail had a few authorities an and cases casu to cite before closing his argument |